The government’s position, the complaint said, “forces Twitter either to engage in speech that has been preapproved by government officials or else to refrain from speaking altogether.”
If you present a conclusion, your opponent can claim it's an invalid conclusion based on faulty premises. However, if you only present evidence-backed facts, your opponent can't argue against the evidence and you force your opponent to reveal their hand earlier. In this case, the hand being revealed is ultimately one of national security... but by structuring the argument in this way, they are likely to avoid a prolonged argument with the government over the conclusion's validity.
The language they do use is familiar,I suspect from precedent that establishes a test for violation of the free speech clause. Which is probably why they use it, and not the fuzzier term censorship. A legal complaint has a different audience than a press release.
That's an interesting statement. I regard obscenities laws to be unconstitutional. Specifically, to be extremely anti-free speech and anti-free press (depending). All forms of censorship are unconstitutional and blatant violations of the first amendment.
Given the countless flawed or flat-out wrong positions the Supreme Court has taken over the centuries when it comes to individual rights, I think we can likely agree they are not always right in their conclusions.
The exceptions to the first amendment are largely rooted in historical practice, which informs what the founders would have understood the scope of free speech to be. I don't think its a supportable statement that they would have understood all forms of censorship to violate the first amendment.
The point is that the constitution doesn't mention "censorship". You may be right that censorship does violate the first amendment, but there are precedents that establish that censorship is permissible in certain circumstances.
Twitter's best line of argument is to go directly to violation of their First Amendment rights, and avoid getting side-tracked on questions of "is this censorship" and "is censorship constitutional in the general case".
>In Rosen v. United States (1896), the Supreme Court adopted the same obscenity standard as had been articulated in a famous British case, Regina v. Hicklin (1868). The Hicklin test defined material as obscene if it tended "to deprave or corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall."
They weren't trying to constitutionally base it. Does that help?
Well, the Constitution says everyone has the right to say anything they want. That's what "free speech" means, and that includes things that someone thinks are "obscene".
Not that the government gives a fuck, but still, just to be clear about what we're discussing here. But yeah, "obscenities laws" are most certainly unconstitutional.
The Constitution says, "Congress shall make no law . . . abridging the freedom of speech."
What is "the freedom of speech?"
You can take it literally: the freedom to say anything you can speak. You probably don't want to go down that route, because the obvious corollary is: "fine, then the First Amendment doesn't cover publication, electronic communications, or expression" because those things are outside the dictionary definition of "speech."
You can also treat it as a phrase that has meaning in context, like "object" does in computer science. But you can't have your cake and eat it too: the same interpretive process the Supreme Court has used to create exceptions to the freedom of speech has also been used to take the freedom far beyond what literally qualifies as "speech." This is particularly true if you're talking about obscenities laws, which mostly deal with things like images and performances which aren't literally speech.
Back when I was in 8th grade, there was a guy who claimed he had a girlfriend. She lived in [two towns over]. But no one believed him because they never saw her. Never got her last name. There were just claims that "she's from [town], and she's awesome".
I have the same reaction to the national security theatre that we're always presented with from classified space. "Trust us there's a real threat, but you don't know about it because it's classified". They can't tell us anything about their 'constant' and 'heroic' efforts to save us from the evil monster redacted. There's no evidence presented to me.
On the other hand, the real bad guys are constantly doing stuff to get in the news. So the only conclusion I have is 'national security' is the bureaucratic way of saying "my girlfriend lives two towns over".
I boarded a commuter plane (prop plane, less than 50 seats) last month at a small town airport. It had pre-9/11 security in place and a broken metal detector. I got a quick pat down that didn't even cover all my pockets. From there, I got on a cross country jet identical to the ones that hit NYC or the Pentagon on 9/11.
It is pretty clear either:
A) The government is so incompetent they can't be trusted with providing anything resembling security.
B) They don't take their security theater seriously.
As a person who lives in a small town with a small town airport, my self-interest implores you to not talk about that sort of thing. I really like getting out of bed at 7:15 for an 8:00 flight - getting to the airport 15 mins before departure time and being at the gate right when boarding starts is fantastic.
At the same time, though there is very little evidence that that sort of security stuff does much to help. Adding the extra security doors to the cockpit helped a lot, but most of the other post 9/11 changes do not have a clear benefit security wise.
They fuck up at big airports too. I was flying from Atlanta Hartsfield Jackson to Miami, FL. I was traveling with two parrots in a kennel that were going with me in the cabin. I told security that they needed to be screened in a separate room because I didn't want to risk them getting startled and flying when out of the cage around a bunch of strangers. They took the kennel and told me to follow them. We walked on the side of the scanners and into a separate room. They made me take the birds of the kennel and proceeded to wipe down the cage and put the piece of cloth in the explosive detector machine. Once it came back ok I was clear to go. I never walked through a metal detector or the body scanner. I informed them of this and they were like 'oh shit' and gave me a quick patdown. I could have not told them and been on my way but didn't want them to realize their mistake and then have to clear out the whole secure area.
Oh, I'm sure they do. But there is a difference between "fuck up in unusual circumstance" and "Hey, lets board an entire plane of people without any of the security procedures".
I've never really understood why companies aren't able to disclose these numbers. It tells the public nothing about specific investigations.
To me - it seems like the government has chosen to draw the line in the sand so far beyond where it should be, to avoid having the actual debate over corporate disclosure of more-specific information.
That is some amount of information, so there is some value in concealing it. It has the downside of removing accountability which I think is more valuable than a trivial amount of information.
Not exactly. A timing attack relies on targeting an ongoing process. If you disclose after the investigation is complete, then there's nothing to attack.
In your analogy, it would be closer to someone logging and then disclosing the fact they had logged in at some point (years) in the future.
(FWIW, I am not a security researcher, but I've heard about how these things work. Would love to be corrected if wrong. :) )
Considering there are people sitting in Guantanamo and elsewhere who haven't been charged with a crime, "after the investigation is complete" could be decades.
It's the US government... They're always investigating, and always collecting all information they can coerce or steal in order to conduct future investigations or use as blackmail.
The goal is targeted but the collection is not. The government's many ridiculous briefs on the subject show that they either don't understand or don't care about the distinction. That doesn't mean you should ignore it.
But "bad guys" have no way of knowing that an increment of a digit is in any way related to their actions. Also, disclosures tend to be time-delayed, further obsfucating what was actually being investigated.
If we have to choose between criminals just stopping crime but getting away, and maybe catching them while destroying freedoms in the process, let's go with the first one. The goal should be to stop crime, period, without damaging the lives of the innocent.
I'm saying that disclosures that add no value to the public discourse but are of value to criminals are not a good choice of tool for protecting freedoms.
To put it another way: supplying useful information to criminals while not helping the public is not a desirable state of affairs.
This eminently reasonable - Basically all Twitter wants to say is we have received X requests of Y type. Right now they are restricted to broad categories 0-999, between 6 & 8 thousand etc.
I thought they were going farther - that they wanted a per account notification ability; not the case.
With the intelligence community hacking into Senators' computers to defend themselves from investigation, even admitting it, at will, with no reprimand? And have it barely scrape the news?
Is it that easy? Can we just repeal bills like the Patriot Act? Look at how easy it was for Australia to invent a media blitz of fear to pass legislation allowing surveillance that has no counter terrorism purpose.
Voters will only be informed if both social and traditional media are able to provide actionable, verifiable and non-biased reports.
Media will only be able to provide quality information when political, intelligence and profit interests have less leverage than an educated purchasing public majority.
Political/intelligence interests will only have have less leverage if we pass meaningful enforceable legislation to curtail the use of selective privilege, story seeding and psychological operations to achieve policy goals.
Congress will only pass meaningful enforceable legislation if the voters demand it.
By and large the public know about the Patriot act and support it, you may disagree but don't pretend they don't know about it.
>Voters will only be informed if both social and traditional media are able to provide actionable, verifiable and non-biased reports.
The reports are there yet the public has yet to be swayed.
>Media will only be able to provide quality information when political, intelligence and profit interests have less leverage than an educated purchasing public majority.
Media can and do provide quality information.
>Political/intelligence interests will only have have less leverage if we pass meaningful enforceable legislation to curtail the use of selective privilege, story seeding and psychological operations to achieve policy goals.
Rolling back freedom of speech is a non-starter.
We need to convince voters that the Patriot Act is bad not pretend they have been victims of mind control.
> Rolling back freedom of speech is a non-starter.
* Governments have a free speech right to propaganda. (The techniques I suggested 'rolling back' are only used for the purposes of propaganda).
> Media can and do provide quality information.
* Despite barriers and through mires of conflicting accounts, the media is able to effectively report information to a public that doesn't pay it and is able to ignore the influence of the institutions that do.
> By and large the public know about the Patriot act and support it...
* The public has wildly different opinions about the effectiveness of Obamacare than it does the Affordable Healthcare Act. Despite countless examples like this it is because of an efficient and reliable news system that the American public has a good sense of politics, the issues that the country faces, the trade-offs inherent to national legislature and how domestic bills fit into larger policy goals and geopolitics. There is no politicization of the media, or where there is it is recognized, sourced and understood as a defining piece of narrative context.
> The reports are there yet the public has yet to be swayed.
* But despite this really good reporting there's a real debate about whether global and ubiquitous surveillance, espionage and sabotage is legitimized by counter-terror purposes even when the programs in question have nothing to do with terrorism.
> We need to convince voters that the Patriot Act is bad not pretend they have been victims of mind control.
Information control. Don't burn too many calories on the straw man.
Hong Kong, as the most recent example, has once again shown us that whenever "the voters" demand something, the government's response is tear-gas and batons.
But hey, governments are "by the people" and "for the people" of course, and to think otherwise would be tantamount to.. actually seeing what's happening!
On the plus side, I wonder if DoJ says, "Guys, we've only got 20 more requests until we bump into the next bracket -- is this one worth it?" That is, do they care what anyone thinks about how high or low the numbers are?
No. The ranges were apparently the result of tense negotiations with DoJ and are strictly defined.
It's especially frustrating that the lowest range includes zero, so it's impossible to say for sure that a certain company has never received a request.
You can leak information with just one range: "We received between 332 and 334 NSLs." If they require larger ranges, it's not so different going from there to, "We received between 133 and 533 NSLs."
Whether a judge will agree that you've complied with the requirements after that sort of trickery is something else entirely. I can't imagine them not complaining about that sort of tactic and whether you get away with it might depend on the judges and lawyers involved.
Yeah, "letter of the law" defenses tend to work better when the intent of the rule in dispute is unclear. There's lots of arguments about the intent behind the 2nd amendment, which means it mostly falls back to a "letter of the law" interpretation. There's no dispute that the NSL obfuscation compromise is intended to obscure the number of NSLs. Revealing the number of NSLs, while still following the "letter of the law," wouldn't fly in front of a judge.
I'm curious as to what would actually happen if Twitter just decided to release the exact numbers. Would they be slapped with a fine? What if they didn't pay the fine? Would they be forced to be shut down? People would not tolerate that one bit.
Almost certainly criminal charges, and possibly (probably?) ones that "pierce the veil" (ie, go after the executives/employees personally, not [just] the corporation).
Not exactly something anybody would really want to risk.
(I am not a lawyer, I am not your lawyer, and this is not legal advice).
They're the rooms no banker who helped cause a global economic crisis will ever see the inside of, but if you reveal that you have been required to turn over information to a secret government with a secret court against every principal of the Constitution, well... I imagine you'd know the color of the wallpaper pretty well.
It's not just the bankers that were spared of course, all the politicians that were partially responsible for the economic melt-down were shielded as well. From Greenspan to Clinton, nobody in D.C. was touched either.
The Fed has caused more destruction of wealth in the last 20 years than all the private sector bankers in US history have combined. Not a single person from the Fed will ever, nor has ever, gotten into trouble for it. They can destroy the US economy with insane rates, QE, stimulus measures, you name it. They can debase the dollar and steal trillions in savings from average Americans. They can encourage incredibly dangerous asset inflation and speculative behavior with 'free' money policies, and nobody will ever do anything about it.
The answer is substantially more likely to be yes for many juries. The charges are likely to be clear cut and the evidence pretty unambiguous. The judge will give the jury clear direction and they're likely to convict. Even if they don't, they'd probably be excellent grounds for appeal.
Fundamentally, the courts are there to uphold the rule of law. If the law's an ass then that's a job for the legislature.
If I understand correctly, companies cannot say "we have received X (let's say 9) requests".
So, is it possible for them to say "We have NOT received 8 or 10 requests"? This clearly doesn't say how many they have received but gives a clue that they might have received 9.
It's not silly but it won't work. People in the tech community typically don't see that you can't "hack the law" like it's machine or program. Judges just don't put up with it. They're adept at augmenting the law with case law that covers the loopholes.
Totally, when I first started learning and caring more about the law I came up with all these clever hacks around various legal agreements and laws... Luckily for me I had friends who went to Law School to explain to me that the law is primarily about intent and most of my hacks weren't loopholes but instead plainly in the wrong and would be dealt with in court if they hadn't already through case law. I think its pretty common for hackers to look at legal agreements like a series of boolean statements that can be solved... sadly it doesn't work that way. Law is complicated :/
Law works the way we want computer programming to work. That is to say, "Do what I meant, not what I coded".
I think we get the impression that it's not that way based on our perception of corporations driving money-filled trucks through legal loopholes, but it's just not the same thing to a judge. Regardless of whether it is to you and I.
>I think we get the impression that it's not that way based on our perception of corporations driving money-filled trucks through legal loopholes
I get the impression that not everyone is playing by the same set of rules, not that they have particularly clever lawyers (although, most of them probably have that as well).
Well, as a good software-engineer-and-qualified-lawyer friend of mine has said, "the power of the law is in its capacity for vagueness".
I often wish law was written more like a computer program, with lots of unit tests up front. But I have no idea how to actually achieve that. Real life is so much more complex than input to any computer program that an attempt to formalise law even more than it already is formalised would just result in it being totally incomprehensible to the people who have to follow it (as opposed to mostly). Plus the man on the street tends to get very angry when people who are "obviously" guilty get off on a technicality.
I've always thought a good starting point would be to hook up Watson or similar software up to LexisNexis or Westlaw. Would be lovely to run a new ToS or Privacy Policy through such software and see where it breaks down.
And those signs aren't even what was intended. "Motor vehicle"? Oh, okay, then my Nissan Leaf is not allowed because it has an electric motor, but my motorcycle is okay because it uses an gasoline engine, not a motor.
But I know what they meant, and keep my motorcycle off the bicycle trail. However, the pedant and software developer in me is bothered just a little when I read those signs.
You can probably find an online copy of the city ordinances that specify exactly what "motor vehicle" means in that context. An interesting thing I noticed in one city is that it's technically illegal to drive certain (stock, unmodified) models of car above 3000RPM due to noise ordinances prohibiting exhaust bypass systems.
I.e. put up a cryptographically signed and timestamped statement that you haven't received a request, then don't update it (or simply take it down) once you receive a request.
Common law systems really aren't as simple as "only intent matters, absolutely nothing clever is tolerated", as many suggest. The problem is mostly that, whenever computers are involved, people involved in the justice system seem to have their sensibilities bizarrely warped. Removing the technological element is likely the best way to get people to think about things sensibly. It is not so much "legal trickery" as it is "framing the matter in terms that the court already understands".
It's not as sophisticated as the blockchain, etc., but about as good - if you pick sensitive pieces of financial news it's clear you could not have known about them in advance. Or sports results.
For companies like Twitter, being based in the US seems to have become something of a liability. There's Google, Apple, et al attempting to quell international concerns with promises of better encryption... I wouldn't be surprised if one of them just up and moves their operation overseas. After all, some of the up-and-coming open-source competition is a decentralized, globally distributed organization and not under the thumb of any nation state per se. They have the luxury, I think, of cherry picking the best privacy and security policies, and can open the kimono on their source code to prove it.
But where would these multinationals go? Haven't we seen that the arms of the US Government stretch across the globe? Wouldn't continued lobbying of the government and eventual reform be a simpler and cheaper solution?
It's extremely unlikely imho that surveillance capabilities will be ceded by any of the nations that now possess them. More importantly, the trust that's been lost can't be regained even if the wheels of politics eventually grind out some kind of compromise. So waiting for a political resolution doesn't look like a great option. What I expect to happen is for the engineering community to push more secure protocols forward (for example, a rejuvenation or successor of IPsec) to guarantee more secure communication. Individual nations will then need to decide if their citizens have a right to real privacy, or just the right to be lied to about privacy. Multinational corporations have some flexibility in terms of where and how they do business, but they have to acquiesce to whatever local laws apply in the countries where they operate - with their own statement of ethics being some kind of baseline, hopefully. One protection afforded companies based in say, the EU, is that they're under less obligation to backdoor their products under threat of the US et al. That gives them a better position of trust with the EU market base. Of course, their products destined for the US market may well be customised to accommodate CALEA etc. Open source projects and foundations on the other hand operate practically outside the purview of traditional government, it seems. They're decentralized, and the source is open, so... although it has happened but it's quite hard to get a backdoor into the codebase. It will take a long time to sort out but basically I expect things like Firefox OS, Ubuntu Mobile, and self-hosted "cloud" solutions (cozy.io) to take at least some market share from proprietary predecessors.
Twitter is a medium at the forefront of democracy movements worldwide. If there were any site worth standing down surveillance in pursuit of a larger foreign policy goal then I would have thought Twitter would be that site. Instead, I'm now imagining young staffers at various US agencies squirming with dumb chills as senior policy makers articulate Twitter's threat to US national security or law enforcement objectives. On the other hand, I'm hopeful these stupid decisions lead to a new generation of US policy makers who will learn something from their bosses mistakes.
Well the problem is that policy making is completely institutionalized and only serves the 1%, which is why software like Ethereum is going to be so important in the future. It will democratize policy making and put it in the hands of everyone. As well as means to articulate any other form of meetings of the minds.
Democratizing policy making is not a guaranteed panacea. Things like the civil rights movement don't happen as a result of democratic policy; they happen when the majority are forced to live a better way.
The founders recognized pure democracy was not an ideal government, regardless of technological issues with regard to implementing it. A republic allows decisions to be made that the majority will never agree to.
Don't make them seem like a bigger deal than they really are. Most of the 1% has barely any more say in the direction of the US government than anyone else. The gaggle of assholes responsible for the plight of America couldn't fill up a small town.
Twitter is also used to manipulate democracy movements. A while ago there was an FBO bid posted to Hacker News for sock puppet software to manage social media accounts and multiple apparent writing styles.
One thing I don't quite understand - why these companies won't move to other countries with better privacy? Is it only because of huge bureaucratic and logistical effort that would be required, or are there some laws which prevent "emigration" of companies, or is it that they would have to provide such data anyway, if they want to operate in US too (but then at least people in other countries would be beyond US gov's harassment)?
How could you run a startup outside San Francisco? /sarcasm
More seriously, if you decided you could do this in (say) Switzerland, you'd have to move the company there and all of the admin staff to prevent them being suborned by the NSA. Most countries you'd want to move to have lengthy immigration procedures. The cost is huge, not just financial but cutting yourself off. Remember, if you truly annoy the intelligence agencies, you'll go on the no-fly or visa denial lists, and you'll never be able to visit your family again. Just look at Snowden.
It's a political problem. No surveillance without acountability.
US companies of meaningful size that attempted to do so, would soon find new laws restricting their ability to leave.
Congress and the President moved quickly to stop tax inversion deals recently. They'd do the exact same thing on the basis of national security were major intelligence assets to attempt to leave.
The US Government will not give up the massive global information network it possesses in the way of Google / Apple / Facebook / Twitter / Yahoo / Microsoft etc. Under no circumstances will companies of this sort and value ever be allowed to crawl out from under control of the US Government.
Don't be surprised that the government prevails and the first amendment is furthermore whittled away at in an every increasing desire for our government to prove it's illegitimacy.
While this is a valiant cause, I don't know what this buys Twitter in the long run. If they have the ability to disclose exact numbers, the only number that would really have any impact is 0. It would be interesting to know what, if any, this number would have on their business.
Twitter has said they don't get many of these requests compared to e.g. Google (not surprising, since most Twitter content is public). The difference between "0" and "0-999" in a six month period is significant. Even "2" or "3" seems very low compared to what the mind assumes "0-999" means (at least 500 and perhaps closer to 1000).
I believe to date every time an individual has sued about receiving a national security letter, the government has arrange to remove the NSL gag and get the suit dropped, so as to prevent setting a precedence as to their limits or illegality. But doing that requires a constitutional lawyer, and that is expensive, so they continue to be effective gag tool.
Twitter wants to be able to say how many NSLs they've received with more preciseness. The government says they can only be vague, they want to be more precise.
I think it would be a 'big deal' if Twitter and other companies started reporting the exact amount of NSLs they receive when they receive them. That would be great. Whether this lawsuit will result in that, even if Twitter wins, is not clear.
Why do people here have to be so cynical? Twitter is doing a good thing here arguing that the government saying they can't release NSL number they are restricting free speech, which is completely true.
Releasing these numbers pose no threat to national security and just shows the DOJs scorched earth policy when it comes to defending their perceived powers.
This is a great thing for Twitter to do and it should be praised for doing so, not be given cynical/snarky replies.
Twitter is a business. Whatever they do is preceded by the expenses vs benefits analysis. In this case the only benefit is an improvement of their public reputation. They want to disassociate themselves with the state surveillance machine.
However this lawsuit means an absolute zilch in terms of an actual surveillance issue. Nor does it move a needle on the very fact that there NSLs exist to begin with. It serves no public interest, it doesn't change things and it's asking not just for peanuts, it's asking for the dust off the peanuts shells. It's a farce. Just as you said - releasing these numbers is a non-issue, so the government will resist for a while and then it will yield. Everyone will cheer for Twitter and the victory, but things will remain exactly where they are now.
The only reason why this lawsuit exists is to improve public's perception of Twitter. It's a PR stunt. I don't see what they should be commended for.
Look I get it, you don't think what Twitter is doing adds any value and thats great but in reality you are just being smug and not really adding any value to the conversation. You are just trying to spread your smug dim view of the world and you aren't really helping anything by doing so.
Instead of always looking for the negative or the cynical view in things like this like "Well they are just doing this for the PR", why not look at it and say "This is awesome that a company is fighting in court to release this type of information to the public." It really will change your view of the world if you start looking at positive and will improve your life dramatically.
Twitter is doing something here that they don't really have to do because they could just go along with the other big companies, follow the guidelines the government laid out and no one would say anything. They have gone further to demand to release exact numbers and more importantly are fighting to stop the government's practice of being able to gag companies in these situations. It may be a small step but it is a first step and they should be commended for it no matter the motive. Good for them and I thank them for picking this fight for all of us.
I don't follow. Are you saying that cynical views don't belong to the HN because they don't "add any value to conversation"? Did I get that right?
> Instead of always looking for the negative or the cynical
view in things like this like "Well they are just doing
this for the PR", why not look at it and say "This is
awesome that a company is fighting in court to release
this type of information to the public." It really will
change your view of the world if you start looking at
positive and will improve your life dramatically.
Patronizing, misguided, but very deep. Must be from the early Dr. Phil, right?
Isn't that the definition of censorship? I'm surprised they don't actually use that word in the lawsuit: http://www.washingtonpost.com/r/2010-2019/WashingtonPost/201...