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Warrantless Wiretapping Decisions Issued By Ninth Circuit Court

Soulskill posted more than 2 years ago | from the win-some-lose-some dept.

Electronic Frontier Foundation 156

sunbird writes "The Ninth Circuit yesterday issued two decisions in the Electronic Frontier Foundation's lawsuits against the National Security Agency (Jewel v. NSA) and the telecommunications companies (Hepting v. AT&T). EFF had argued in Hepting that the retroactive immunity passed by Congress was unconstitutional. The Ninth Circuit decision (PDF) upholds the immunity and the district court's dismissal of the case. Short of an appeal to the U.S. Supreme Court, this effectively ends the suit against the telecoms. In much better news, the same panel issued a decision (PDF) reversing the dismissal of the lawsuit against the N.S.A. and remanded the case back to the lower court for more proceedings. These cases have been previously discussed here."

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RMS (-1)

Anonymous Coward | more than 2 years ago | (#38538898)

Congratulations, Paul Christoforo. You've won... again.

Re:RMS (1)

alukin (184606) | more than 2 years ago | (#38538944)

Let them wiretap anything, but use ZRTP an something like this http://zfone.com/index.html [zfone.com] . Or something even better with ECC. http://en.wikipedia.org/wiki/Elliptic_curve_cryptography [wikipedia.org]

Re:RMS (1)

lightknight (213164) | more than 2 years ago | (#38542720)

I think not. The cost of additional wiretapping, for legitimate (non-LEO / non-security) businesses, is having a detrimental effect on profit.

Imagine if you were a high frequency trader, and the NSA's wiretapping added an extra second to the execution of each trade. The government's boys and their toys are getting in the way of business, and that would make me extremely unhappy. Like un-electing any senator giving them support. ^_^

Rights..... (5, Insightful)

P-niiice (1703362) | more than 2 years ago | (#38538938)

Hey, why not? We already have unlimited detention without charges/evidence/probable cause. Might as well go for it all.

Re:Rights..... (1)

SETIGuy (33768) | more than 2 years ago | (#38542094)

American style "democracy" no longer works. It will get replaced with something else. Probably something worse.

Re:Rights..... (1)

Anonymous Coward | more than 2 years ago | (#38542506)

Don't forget, citizens can be executed without trial now too!

NSA case (4, Insightful)

oldhack (1037484) | more than 2 years ago | (#38538940)

The NSA case will disappear in the name of national security or some such.

Impeach (4, Insightful)

fnj (64210) | more than 2 years ago | (#38538962)

The court is corrupt on the face of this decision. Impeach the judges responsible.

Re:Impeach (2)

nman64 (912054) | more than 2 years ago | (#38539542)

Unfortunately, it seems the court's decision with regard to the retroactive immunity is correct. The legal basis to challenge the new law simply does not exist. The blame should rest on Congress for passing such a law.

"It could probably be shown by facts and figures that there is no distinctively native American criminal class except Congress." - Mark Twain

Re:Impeach (5, Informative)

similar_name (1164087) | more than 2 years ago | (#38540752)

There is Article 1, section 9 of the Constitution

No Bill of Attainder or ex post facto Law shall be passed

Of course courts have interpreted it to not apply to all laws. I guess the wording was too vague.

Re:Impeach (1)

Jane Q. Public (1010737) | more than 2 years ago | (#38542766)

Apparently, to the modern Supreme Court, the words "no" and "shall" are ambiguous.

"⦠it is objected, that the judicial authority is to be regarded as the sole expositor of the Constitution in the last resort; and it may be asked for what reason the declaration by the General Assembly [of Virginia], supposing it to be theoretically true, could be required at the present day, and in so solemn a manner.

On this objection it might he observed, first, that there may be instances of usurped power, which the forms of the Constitution would never draw within the control of the judicial department; secondly, that, if the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the Constitution before the judiciary, must be equally authoritative and final with the decisions of that department. But the proper answer to the objection is, that the resolution of the General Assembly [the Virginia Resolutions of 1798] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another - -by the judiciary as well as by the executive, or the legislature.

However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve."

-- James Madison, Report of 1800

Re:Impeach (1)

Jane Q. Public (1010737) | more than 2 years ago | (#38542832)

Retroactive laws are unconstitutional. Period. No exceptions, no wavering, not "if". That is one of the plainest statements in the whole of the Constitution.

Article I, section 9: "No bill of attainder or ex post facto Law shall be passed."

What part of "no" do you not understand?

Re:Impeach (1)

pla (258480) | more than 2 years ago | (#38540384)

The court is corrupt on the face of this decision. Impeach the judges responsible.

And this from the ninth circuit, the one that usually actually stands up for the people over government or big business, the one that the even more corrupt USSC most often overturns.

What can I say? Hey Feds, just fuck all y'all. I won't even give you the time to stop and piss on your graves after the revolution you seem so intent on forcing us into.

Re:Impeach (1)

sl4shd0rk (755837) | more than 2 years ago | (#38541382)

"corrupt" means different things depending which side of the law you work for. The US is in the midst of a legal system which makes and enforces it's own interpretation of right and wrong.

Nuremburg Defense (5, Insightful)

Anonymous Coward | more than 2 years ago | (#38538976)

Great. The Ninth Circuit just made it OK to use "I was just following orders" as a defense, if you're a telecom.

Re:Nuremburg Defense (1)

Anonymous Coward | more than 2 years ago | (#38539064)

And at the Judges' Trial we imprisoned the judges who gave legal cover to those who were just following orders.

(Note: Suitably, the captcha for this comment was 'radical')

Re:Nuremburg Defense (5, Interesting)

tnk1 (899206) | more than 2 years ago | (#38539088)

I think the point is that Congress can't retroactively make a law that holds someone criminally liable for something that they did in the past before the law was passed, but they *can* and always have been able to make a law that retroactively removes something that was a crime in the past. The idea is to protect people from being held accountable for something that was perfectly legal in the past, but there is no reason to have a protection to keep people as criminals even after the law that criminalized them was overturned.

In this case, the problem is that it does allow illegal activity to be condoned officially later on, as long as they don't get caught until the law is passed. That said, I think it is a political question, not a judicial question. It may well be that a law accidentally criminalizes a well-meaning person who is actually guilty by the letter of the law, but not by the intent of its framers. For that reason, I'd probably have to agree with the court and state that nothing prevents Congress, as the legislative branch, from absolving or nullifying previous criminal behavior by legislation.

Re:Nuremburg Defense (5, Insightful)

Kjella (173770) | more than 2 years ago | (#38539182)

For that reason, I'd probably have to agree with the court and state that nothing prevents Congress, as the legislative branch, from absolving or nullifying previous criminal behavior by legislation.

So far that's fine but Congress should not be able to absolve breaking the constitution without amending the constitution. So if your fourth amendment rights were violated, Congress shouldn't have the power to pass a regular law granting immunity to those who broke it. In that case you might as well use the constitution as toilet paper.

Re:Nuremburg Defense (4, Informative)

Shakrai (717556) | more than 2 years ago | (#38539320)

So if your fourth amendment rights were violated

Where's your cause of action though? Presuming your rights were violated by the Government collecting the meta-data of your phone calls; did the Government use this data in any criminal prosecutions? If it did then you'd be able to raise the 4th amendment as a defense; it might not be successful but you could raise it. I'm not so sure you can just sue the Government and/or telecoms after the fact when the data was never used against you though.

Understand that I'm not saying I agree with any of this. For better or worse this is the way it is though.

Once again, thank you President (then Senator) "I will filibuster any bill containing telecom immunity" Obama. Meet the new boss; same as the old!

Re:Nuremburg Defense (2)

Khyber (864651) | more than 2 years ago | (#38539470)

"did the Government use this data in any criminal prosecutions? If it did then you'd be able to raise the 4th amendment as a defense"

No, we use the 4th amendment as an OFFENSE, not a defense.

Those rights exist to give us protection from the government, defensively or offensively.

The proper thing here is a major class-action suit by the PEOPLE, not by some lawyers.

Real people need to stand up, riot, and make it known that this will no longer be tolerated.

And sadly, there's no peaceful way around this. Civil war *MUST* happen in order for anything to get better.

Re:Nuremburg Defense (1)

LandDolphin (1202876) | more than 2 years ago | (#38539548)

It shouldn't matter if the Government used the data collected against a person in a criminal case or not - either way, they violated someones rights.

Re:Nuremburg Defense (0)

Anonymous Coward | more than 2 years ago | (#38542554)

Meanwhile, back in the real world, the way we enforce the 4th Amendment is by excluding evidence obtained by violating it.
If they didn't prosecute anyone with evidence obtained this way, then it was just snooping, not an infringement of 4th Amendment rights.

Re:Nuremburg Defense (4, Interesting)

snowgirl (978879) | more than 2 years ago | (#38539648)

You raise a good point here. Traditionally, it's been well-upheld that a search isn't illegal if the person had immunity from anything that the government found. Namely, the remedy for an illegal-search is that the evidence and any further evidence collected solely as a result of that evidence is thrown out and cannot be used against you.

No one was ever charged with a crime as a result of these wiretaps, so there's no remedy to grant.

Like it or not, as one person said, Congress should not be able to absolve a constitutional violation, but they didn't. They absolved a STATUTORY violation, that of wiretapping. Wiretapping is not immediately a constitutional issue.

Re:Nuremburg Defense (2)

H3lldr0p (40304) | more than 2 years ago | (#38539780)

No one was ever charged with a crime as a result of these wiretaps, so there's no remedy to grant.

Are we certain about that? I thought that part of the problem was the circular logic used in this case. ie, The government will not let you know if you were spied upon because they might be building a terrorism case against you. As far as I can recall, that was the whole of the initial justification and why congress had to act to pass the law.

So how do we know?

The obvious and easy remedy would be to declare the law null and let the public see for themselves what was done on their behalf. That is the only way to be certain that there was no cause for concern and that there is no other remedy needed in this and every other case brought up by such actions or laws passed by Congress.

Re:Nuremburg Defense (-1)

Anonymous Coward | more than 2 years ago | (#38540062)

There may not have been any charges. It could have been used in such a way where the information on US citizens was used outside the United States against "terrorists". In a war zone they may have used it to track down the enemy and kill those when they shot at the soldiers. No trial required. The question is was the initial search legal. I believe it clearly wasn't. They were acting on the initiative of the government. The government can't demand this. I think they can ask legally and receive if it is voluntarily provided by the telecoms. But it may not have been legal for the telecoms to provide this info. A criminal act of the telecoms does not prevent the government from using it at trial. The question is was there any pressure involved from the government. If so it might be illegal. Particularly if the parities felt they must hand this information over or otherwise cooperate.

Re:Nuremburg Defense (1)

P-niiice (1703362) | more than 2 years ago | (#38542242)

No one was ever charged with a crime as a result of these wiretaps, so there's no remedy to grant.

I guarantee they have, but the government was smart enough to continue and get other evidence and not use the wiretap on its own merits. We'll never know will we? Good luck with the FOIA request on that one!

Re:Nuremburg Defense (0)

Anonymous Coward | more than 2 years ago | (#38542630)

the government was smart enough to continue and get other evidence and not use the wiretap on its own merits.

If that's true, then I would drop the whole thing. No harm, no foul.

Re:Nuremburg Defense (0)

Anonymous Coward | more than 2 years ago | (#38539748)

Use isn't a question at all the text is pretty clear.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Re:Nuremburg Defense (1)

element-o.p. (939033) | more than 2 years ago | (#38539926)

Legal interpretations are a grey area; that's why lawyers get paid big bucks to argue the finer points of such interpretations. Having said that, I'm not sure how one would get the idea that the 4th Amendment only applies if government attempts to use the data it gathered against you. From the original text:

It goes on to say that the government cannot issue a warrant based upon illegally obtained data, but it would seem to me that you would be stretching the 4th Amendment to an absurd degree to claim that the government has the right to conduct a search whenever, wherever and however they want so long as they don't actually attempt to prosecute you based on the information they obtain.

Would anyone with some actual legal education care to chime in on this?

Didn't say I liked or agreed with it (1)

Shakrai (717556) | more than 2 years ago | (#38540588)

but it would seem to me that you would be stretching the 4th Amendment to an absurd degree to claim that the government has the right to conduct a search whenever, wherever and however they want so long as they don't actually attempt to prosecute you based on the information they obtain.

Just said that's the way it is, for better or worse.

Food for thought: The 5th Amendment says you can't be compelled to be a witness against yourself but the Government can still compel you to testify in a criminal proceeding by offering you immunity against any crimes laid bare as a result of your testimony.

Re:Didn't say I liked or agreed with it (1)

element-o.p. (939033) | more than 2 years ago | (#38540768)

Gotcha. By the way, interesting comment re: the 5th Amendment. I hadn't heard or thought of that, although it's a pretty...interesting*...loophole for compelling a testimony from someone who doesn't particularly want to cooperate.

*sed "s/interesting/(sneaky|devious|clever)/"

Re:Didn't say I liked or agreed with it (1)

Local ID10T (790134) | more than 2 years ago | (#38541648)

Food for thought: The 5th Amendment says you can't be compelled to be a witness against yourself but the Government can still compel you to testify in a criminal proceeding by offering you immunity against any crimes laid bare as a result of your testimony.

That is not compelling your testimony...that is coercing your testimony. You can say no. They are simply making you an offer too good to refuse.

Re:Nuremburg Defense (1)

misexistentialist (1537887) | more than 2 years ago | (#38540648)

"Fishing expeditions" are supposed to be illegal. You don't need to be a defendant to be a victim of a crime. When the government refuses to prosecute, citizen advocates should be recognized in that role, and the court should issue arrest warrants making federal officials subject to citizen's arrest.

Re:Nuremburg Defense (2)

Dripdry (1062282) | more than 2 years ago | (#38540694)

How about when they determine that you might be connected to suspected terrorist activity, and they make you "disappear"? Or kill you without a trial? That little court system you got there is meaningless when the government decides to simply ignore it.

Re:Nuremburg Defense (0)

Anonymous Coward | more than 2 years ago | (#38539656)

The 4th amendment protects you from government searches, which is probably why the case against the NSA was allowed to proceed. It does not limit the actions of private enterprise or individuals. Basically, as fas as the 4th amendment is concerned, it's illegal for the government to ask for the taps, not for the telecoms to comply.

Other laws may make the telecoms criminally or civilly liable for their actions, but there's nothing in the 4th amendment that covers them.

Re:Nuremburg Defense (1)

soren42 (700305) | more than 2 years ago | (#38540110)

You're absolutely right. I *hate* to use a cliché, but this is just another example that "the terrorists... er, lobbyists have won."

There's no reason we need to throw away the Constitution or the Bill of Rights just to get the "bad guys". It's not like every police agency from the small town sheriff to the FBI isn't familiar with the process of obtaining warrants to tap phone lines. This just means they've no need for probable cause.

The flip side of this is that nearly every wireless hub sold from 2007 to today have encryption and/or authentication turned on by default. More of the population is aware of the risks today than ever before. It's hard to imagine that any illegal endeavour would use unencrypted wireless access. And while nearly every encryption method has been cracked, it's been a brute force attack — not something a law enforcement agency wardriving will be cracking onsite — unless you can fit a supercomputer or a super-computing grid in your car.

It will eventually take quantum computing to make this possible, but by then, we'll likely be using quantum non-locality cryptology. Oh well.

Re:Nuremburg Defense (0)

Anonymous Coward | more than 2 years ago | (#38540482)

What it does is remove the company that cooperated with what they (maybe) thought was a lawful order from the government and at least was a government order with an implied threat behind it from being liable in court for participating in violating your rights -- under duress.

It's the government that really did wrong and the government that had power to threaten the companies if they didn't cooperate.

The companies really should have been parties to your suit and also be suing the government for violation of THEIR rights.

Re:Nuremburg Defense (1)

Fnord666 (889225) | more than 2 years ago | (#38542514)

In that case you might as well use the constitution as toilet paper.

I think we are way passed that point by now.

Re:Nuremburg Defense (1)

lightknight (213164) | more than 2 years ago | (#38542806)

Indeed. The current rule of law appears to exist only in the minds of the judges / president / congressmen currently in office.

They do whatever they want, and as a citizen, you come in second place. It's not your position to know the law, only to obey those who will gleefully interpret it for you, to their advantage.

Re:Nuremburg Defense (1)

lightknight (213164) | more than 2 years ago | (#38542772)

Dude, it's time to admit it: the Constitution is no longer the supreme law of the land. With all the shit flowing through Congress recently, can you doubt it?

Re:Nuremburg Defense (4, Interesting)

shaitand (626655) | more than 2 years ago | (#38539230)

The problem is that the warrant-less wiretapping violates the constitution and congress lacks the authority to pass a law that allows it therefore congress cant just allow someone to do it and then pass a law granting them immunity after the fact either.

Quite frankly they lack the authority and any judge worth their salt would toss the typical "we did it in the public interest" argument out. Clearly it is NOT in the public interest to subvert the public's right as guaranteed by the constitution.

Re:Nuremburg Defense (1)

element-o.p. (939033) | more than 2 years ago | (#38540180)

First, let me say that personally, I agree with you. Philosophically, you are exactly right, and I wish our elected leaders, as well as those who elected them, would get a clue.

However, allow me to play devil's advocate for a moment. Unfortunately, for many people, it is not at all clear that it is not in the public interest to subvert the public's right as guaranteed by the Constitution. There are, in fact, a number of otherwise sane, rational people who are clamoring for the government to go ahead and subvert whatever rights they have to keep them safe from the "terrists". They have become brainwashed into thinking that there is a radical Islamic hiding behind every corner, just waiting to blow up their airplane, bus, train, etc. As a result, they are more than happy to surrender their rights in the name of "security" because, after all...this is the U.S.A. we're talking about. We're the good guys -- we don't ship people off to the Gulags or concentration camps (cough...cough..."Guantanamo"...cough). We don't have anything to fear from our government, right?

If we want things to change, if we want to return to the principles upon which this country was founded, we have GOT to make people understand that the Constitution exists for a very, very good reason, and that government -- any government, even ours -- WILL abuse the people it is supposed to protect if you allow it to get too powerful.

Re:Nuremburg Defense (1)

SirGeek (120712) | more than 2 years ago | (#38541596)

We don't ship people to concentration camps ? Forget Quantanamo. Ask older Japanese Americans about the "camps" they were forced into during WW II.

Re:Nuremburg Defense (0)

Anonymous Coward | more than 2 years ago | (#38541612)

>Quite frankly they lack the authority and any judge worth their salt would toss the typical "we did it in the public interest" argument out.

Korematsu v. United States

Weep now my son, your "rights" have been dead since 1944.

Re:Nuremburg Defense (0)

Anonymous Coward | more than 2 years ago | (#38541986)

congress cant just allow someone to do it and then pass a law granting them immunity after the fact either

The ninth circus said they can. As appeals courts go it doesn't get more la-la land lefty than that.

The illegal wars and illegal wire taps of an illegal President and the illegal congress with their illegal telecom companies aren't actually illegal. But please, feel free to continue characterizing everything you don't like as illegal; it's a free country.

Re:Nuremburg Defense (1)

lightknight (213164) | more than 2 years ago | (#38542836)

In your opinion, has the United States ever been engaged in an illegal or otherwise unlawful war?

Re:Nuremburg Defense (3, Interesting)

Transkaren (1925482) | more than 2 years ago | (#38539170)

Let's be honest here: "I was just following orders" *should* be a valid defense, when you're referring to civilians. Is it *right*? No. But my understanding is that the Telecoms were given apparently-legal instructions by a legitimate authority, obeyed them, and then someone pointed out "Wait, that's not exactly kosher, people..." Did they (the telecoms) screw up? Absolutely. But there was an assumption that the telecoms made that the people in legal authority would not overstep their bounds. It's the same assumption we as civilians make every day - and the reason why we as a society prefer come down like a ton of bricks on anyone we find that violates that trust. Not because the crime itself is necessarily horrible (though it frequently is), but because by committing the crime through their offices, they stain the honor and/or sanctity of those offices. This isn't even entirely a governmental thing; it also applies to Doctors, Engineers, Religious teachers, Lawyers, and any of a thousand other situations. If a person with apparently legitimate authority tells you to do something that doesn't seem ridiculously out-of-bounds for their authority and you do it, you damned well should be protected.

Re:Nuremburg Defense (4, Insightful)

shaitand (626655) | more than 2 years ago | (#38539272)

"that doesn't seem ridiculously out-of-bounds for their authority"

And theres the rub. Warrantless wiretapping is clearly out-of-bounds for any level of government. Even if congress passed a law allowing this, the president signed it, his executive branch enforced it, and the supreme court affirmed it (and PUBLIC legal defense against the government attempts is the first place the telcos should have gone with this).

Every citizen has an obligation to defend our constitution from government tyranny when they see it. By shedding blood or having their blood shed if necessary.

Re:Nuremburg Defense (2)

LandDolphin (1202876) | more than 2 years ago | (#38539592)

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights,[74] that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Re:Nuremburg Defense (1)

jamstar7 (694492) | more than 2 years ago | (#38540772)

So sorry, that was the Declaration of Independence, not the Constitution. Like any government document, the Constitution has no provisions for being set aside by the public in the public good. The American Civil War proved that, when the Southern states seceeded, the Northern states forced them back into the fold.

Re:Nuremburg Defense (1)

Jeremy Erwin (2054) | more than 2 years ago | (#38541116)

So sorry, that was the Declaration of Independence, not the Constitution. Like any government document, the Constitution has no provisions for being set aside by the public in the public good. The American Civil War proved that, when the Southern states seceeded, the Northern states forced them back into the fold.

This public good you speak of... Was it perhaps slavery? [filibustercartoons.com]

Re:Nuremburg Defense (1)

Transkaren (1925482) | more than 2 years ago | (#38539974)

And theres the rub. Warrantless wiretapping is clearly out-of-bounds for any level of government. Even if congress passed a law allowing this, the president signed it, his executive branch enforced it, and the supreme court affirmed it (and PUBLIC legal defense against the government attempts is the first place the telcos should have gone with this).

Except that warrantless wiretapping *is* allowed - for short periods of time, after which they need a FISA warrant. And wiretapping/review of foreign correspondence is explicitly allowed. Which means that there was a potentially legal argument that the orders were legit. As for it being out-of-bounds for government, yes it is. But let's take the case to the NSA, not the civilian schlubs they got to do the work.

Re:Nuremburg Defense (1)

shaitand (626655) | more than 2 years ago | (#38540138)

"Except that warrantless wiretapping *is* allowed - for short periods of time... And wiretapping/review of foreign correspondence"

Allowed by whom? I don't recall reading that in the Constitution. I think you are confusing the powers which the government has illegally granted itself with the powers it has actually been granted.

Re:Nuremburg Defense (4, Insightful)

hedwards (940851) | more than 2 years ago | (#38539280)

Due diligence. Everybody who has grown up in the US has at some point come into contact with the notion that law enforcement need warrants. I'm not sure how they could possibly believe that there weren't any laws being broken when they weren't being provided with any documentation.

These are organizations that have attorneys and if they weren't aware of the illegality of it it was purely because they were specifically looking the other way.

Re:Nuremburg Defense (1)

ebombme (1092605) | more than 2 years ago | (#38540042)

In my opinion, this explanation would be fine if they were just an everyday person who has no knowledge of the law. But this was companies with lawyers who were asked to assign facilities, resources, technology, and reroute their networks to make this happen. This is unprofitable, and unprofitable is not the way you run a business. They wouldn't just expend all these resources without looking for a way around it. You certainly don't expend money on doing something like this for free. In my opinion, this was a calculated move by the telecoms to benefit elsewhere. They most certainly had their lawyers look at it, and were in collusion with some part of the Govt. to get this setup. Either they got something out of it or their hands were forced and either way it was wrong, and it should have been taken to court and publicized instead of being hidden and co-operated with. Just because someone in authority tells you to do something does not mean you blindly follow, and these large companies were blindly following instead of protecting their customers privacy which is part of what we pay them to do. Violating peoples privacy is out of bounds for any level of authority without a proper justification. Our society has recognized the warrant to be that justification.

Re:Nuremburg Defense (4, Insightful)

element-o.p. (939033) | more than 2 years ago | (#38540322)

No.

I agree that we should come down like a ton of bricks on those who overstep those bounds, but each and every one of us has a moral and ethical obligation to weigh every request, order or demand from authority before complying. Doing the right thing is not always easy, but that's life. If people, as a whole, would grow a collective backbone, those in authority would be far less inclined to overstep their bounds because they would have the proverbial snowball's chance of succeeding with whatever it is they are trying to do that is unethical or dishonest. As long as we keep complying with authority because "I was just following orders" we are willing accomplices in their evil. That's not the way I want to live my life.

Re:Nuremburg Defense (1)

Anonymous Coward | more than 2 years ago | (#38540652)

Good post. It is refreshing to find someone that does more than merely pay lip service to ethics. Carry on, noble one.

Re:Nuremburg Defense (4, Insightful)

Sloppy (14984) | more than 2 years ago | (#38539172)

The 9th circuit isn't doing that; Congress did it in 2008. That was the very intent of the FISA amendment, and there really wasn't any ambiguity about it. Many people simply hated it at the time. (Though most didn't hate it enough to vote against the people who did it -- both McCain and Obama who supported it as senators, combined got an overwhelming majority of the votes for president. Doing what they did, didn't destroy their campaigns.) Don't blame the court for that. The AT&T suit really ought to be dead; the time to fight for justice was 3.5 years ago and we collectively decided it wasn't important.

We need to accept and take responsibility for that decision. It is hypocritical to vote against justice and still demand it.

Re:Nuremburg Defense (2, Interesting)

Anonymous Coward | more than 2 years ago | (#38539302)

Great. The Ninth Circuit just made it OK to use "I was just following orders" as a defense, if you're a telecom.

No, what the Ninth Circuit said was, "if the US Government asks for your assistance in a national security matter and you act in good faith to comply with the existing legal requirements, you can't be prosecuted even if the Government is later found to have acted illegally." Which is as it should be. We want the private sector to cooperate with the government on national security matters. It's a bad thing to ask companies to cooperate with the government and then try to jail them later when they do even after they've tried in good faith to comply with all of the legal requirements existing at the time. Do that enough times and pretty soon the private sector will never cooperate willingly with the government under any circumstances even to the detriment of national security.

If you want to hold somebody responsible, go after the government bureaucrats who ran the program and their lawyers who gave suspect legal advice at the time.

Re:Nuremburg Defense (1)

element-o.p. (939033) | more than 2 years ago | (#38540374)

But the telcos (arguably) didn't comply with all of the legal requirements that existed at the time. There were laws on the books that prohibited wiretapping, and the 4th Amendment prohibits "unreasonable" searches without proper authorization (and, yes, the "unreasonable" clause in the 4th Amendment is a potential loophole; I'll let the lawyers argue about whether or not such requests were "reasonable").

BLOW me DOWN, Olive! Auuh gah gah gah gaugh! (-1)

Anonymous Coward | more than 2 years ago | (#38539002)

HUGE List of Security Blogs: Unix, Linux, Windows:
- http://pastebin.com/raw.php?i=FwjBMJib [pastebin.com]

Authorship Recognition and Obfuscation projects:
- http://pastebin.com/raw.php?i=dt0UYSVC [pastebin.com]

Law Enforcement usually wins (0)

qualityassurancedept (2469696) | more than 2 years ago | (#38539022)

Law Enforcement usually wins in these sorts of cases because if you are not a criminal, then you have nothing to be concerned about.

Re:Law Enforcement usually wins (3, Insightful)

SJHillman (1966756) | more than 2 years ago | (#38539094)

Given the state of the laws in effect today, you'd be hard pressed to find someone who hasn't committed some kind of offense within the last month. It's more like "You're a criminal but you have nothing to be concerned about unless we want to enforce it"

Re:Law Enforcement usually wins (3, Interesting)

Tsingi (870990) | more than 2 years ago | (#38539212)

Given the state of the laws in effect today, you'd be hard pressed to find someone who hasn't committed some kind of offense within the last month. It's more like "You're a criminal but you have nothing to be concerned about unless we want to enforce it"

Not to mention that many many law enforcement agents are themselves guilty of violating the law.

Re:Law Enforcement usually wins (1)

Transkaren (1925482) | more than 2 years ago | (#38539248)

As far as I know, I haven't personally committed any gross violations of the law in the past year, let alone the past month. By gross violation, I mean something other than parking illegally or speeding. We geeks like to think that everyone does what we do, but the truth is that geeks tend to enjoy dancing back and forth along the line of acceptability - and that leads to frequent violations of the law.

Either that, or I'm far more abnormal than I thought.

Re:Law Enforcement usually wins (4, Insightful)

SJHillman (1966756) | more than 2 years ago | (#38539376)

The point is that you have committed violations of the law... it doesn't matter if they're gross violations or even if the common person realizes they're violations. Most people commit some sort of violation every day (Ever go 56 in a 55 zone? That's breaking the law). Just because it's inconsequential, unenforced or otherwise ignored doesn't mean you're not breaking a law. We're heading in a direction where everything is illegal and we just accept a state that can arrest you for anything if they decide they want to.

Re:Law Enforcement usually wins (1)

qualityassurancedept (2469696) | more than 2 years ago | (#38541270)

Good grief I was just joking in my original post above. Actually, the best way for the government to turn the internet into a revenue stream is to create a legal framework that makes EVERYONE a lawbreaker and then ticket or fine for infractions. It's the exact same thing with Speed Limits. You would think that the cost of gas and the fear of death would make everyone drive 55 MPH in america but in fact the government all but made every driver into a speeder so that they could capture the revenue from speeding tickets. Its a well they return to whenever they want to generate cash for themselves (i.e. the government). The internet too could be such a well but for it to succeed, the infractions have to be defined in such a way that everyone is guilty and the punishment is so minor that all it amounts to is paying a fine. And also it will only work if the government can watch everything that is passing through the intertubes, just like they do with watching traffic on highways.

Re:Law Enforcement usually wins (1)

element-o.p. (939033) | more than 2 years ago | (#38540594)

The key here being the two phrases you used, "As far as I know..." and "gross violations of the law...[emphasis mine]".

Can you quote book, chapter and verse from the laws on the books in the state and municipality where you live? No? Then you don't know whether or not you have violated any laws. For example, someone once told me that where I live, if the state troopers catch you stopping to take a leak outside, they can arrest you and you will have to register as a sex offender. Keep in mind that I live in a state that is over half a million square miles with a total population of about half a million people. On average, that's roughly one person per square mile. Considering that over half of those people live in a 2000 square mile area, most of the state has a population density considerably less than one person per square mile (and for the record, there aren't a lot of rest stops over most of state, so peeing in the woods is just a fact of life here). The point is, while it's not likely that the Troopers will arrest you for relieving your bladder in the bushes unless you are being absolutely ignorant about it, it is possible. Therefore, the argument that "I have nothing to hide because I have done nothing wrong" is dangerously naive. If you give the authorities a reason to come look for you, there's a better than even chance that they can find something to hang you with.

Re:Law Enforcement usually wins (1)

SETIGuy (33768) | more than 2 years ago | (#38542454)

Do you have receipts for all the MP3s on your computer? Do you think the prosecutor can't find an expert to testify that your IP address was seeding bittorrent?

Re:Law Enforcement usually wins (0)

Anonymous Coward | more than 2 years ago | (#38542220)

Given the state of the laws in effect today, you'd be hard pressed to find someone who hasn't committed some kind of offense within the last month. It's more like "You're a criminal but you have nothing to be concerned about unless we want to enforce it"

And thats why American's have the fifth. It's not to protect the guilty, but to protect the presumed innocent.

Times sure have changed (2, Insightful)

Anonymous Coward | more than 2 years ago | (#38539054)

Richard Nixon would have loved this era.

Re:Times sure have changed (2)

betterunixthanunix (980855) | more than 2 years ago | (#38539718)

Richard Nixon had nothing on the Bush or Obama administrations. The past two presedencies have been the most secretive and constitution-breaking in American history.

"Short of an appeal to the U.S. Supreme Court" (0)

Anonymous Coward | more than 2 years ago | (#38539070)

That is where it should be. That would end this nonsense of differing decisions depending on what circuit you are under.

Good or bad, make a final decision.

Is it really any surprise... (4, Informative)

PortHaven (242123) | more than 2 years ago | (#38539116)

That a government acting against it's Constitution will have courts that uphold acting against it's Constitution.

Constitution is naught but a museum piece. We have ceased to recognize it by passing laws and court decisions that by-pass it entirely.

Re:Is it really any surprise... (3, Informative)

DoofusOfDeath (636671) | more than 2 years ago | (#38540228)

The courts appear to have decided that threats from alleged terrorists trump the threat of tyranny by the executive branch. That's why State Secrets doctrine so often wins, and that's why the courts have protected the NSA from judicial scrutiny in general.

I fear that with the eternal War on Terror, they've confused which threat is greater.

Re:Is it really any surprise... (0)

Anonymous Coward | more than 2 years ago | (#38540270)

> Constitution is naught but a museum piece.

That's not true! The 3rd amendment stands intact: we aren't quartering soldiers in people's houses.

So there's that, anyway.

war declared on Americans... (0, Insightful)

Anonymous Coward | more than 2 years ago | (#38539118)

This BS will never stop. These got bastards want a slave society and see nothing wrong with enlisting the corporate sellouts. Best prepare yourselves for war.

Break laws first... (1)

Anonymous Coward | more than 2 years ago | (#38539144)

Retroactive immunity later. Wonderful.

Nothing unexpected here (2)

willaien (2494962) | more than 2 years ago | (#38539178)

Nothing to see here:
Government instructs company to break the law. Government then gives company immunity.

What did you expect? For them to take the immunity back away?

Your rights as a citizen are only important in so far as you vote for the right guy or spend money. They could care less otherwise.

Freedoms (4, Insightful)

DaMattster (977781) | more than 2 years ago | (#38539410)

Here is my 0.02 cents: neither government nor the courts are to blame, we the citizenry who elect our officials are to blame. We have the media reporting a disporportionate amount of bad news (crime, terrorism, etc) because it sells. In turn this leads people to conclude that times are not getting safer but more dangerous and, in some cases, may actually encourage criminal copycat behaviours because of the basic human tendency to jump to conclusions. The reality is that crime hasn't really skyrocketed and by all accounts might actually be rising at a much lower rate when compared with the population. We just have a distorted perception of rampant crime and danger as a result of what the media reports. So people, and in particular senior citizens due to diminished strength and mobility, experience an irrational amount of fear. Thus we turn to our elected officials to ask for greater safety and security in the form of more laws and restrictions. Hence, many of these laws are poorly written and concieved because they were born out of a knee jerk reaction versus careful thought as to whether these laws are: (a) really necessary and/or (b) will really achieve the end result. Politicians that are wise to the demands of their constituents will of course play the get tough on crime with the hope of winning votes and even push through legislation toughening sentences or expanding the dragnet of what constitutes criminality. In summary, a vicious cycle is created that no one is really able to break unless there were a sudden breakout of common sense. I would admire the politician that would take the "not get tough on crime stance" because crime is not rampant. I would admire the politican that would take the step back and reflect the negative effects of passing some laws instead of being concerned about some short term gain in the polls. In reality, we've no one to blame but ourselves. The courts are doing what we are basically asking them. We are willingly giving up liberty for the security that we are asking for. Thomas Jefferson noted that, "Those that would give up some liberty to gain security get none and deserve neither."

Re:Freedoms (4, Insightful)

JustNiz (692889) | more than 2 years ago | (#38539626)

Wait... you seriously think we get a free choice to elect our officials?
At best we get a choice between 2 or 3 identical people who the system has already made sure will all promote the status quo.

Re:Freedoms (1)

DaMattster (977781) | more than 2 years ago | (#38539896)

Wait... you seriously think we get a free choice to elect our officials? At best we get a choice between 2 or 3 identical people who the system has already made sure will all promote the status quo.

No, I neither said nor implied that we have a free choice: we simply vote. The reason for status quo is because that is what the people want. If enough people, and by enough I mean 90% - 95% of the population, suddenly wanted marijuana legalized, it would be foolish for a politician wanting to remain in office not to hop on the legalization band wagon. Actually, our concept of democracy is very much rigged with precious little difference between parties - sometimes none at all - and corporate special interest getting involved. Furthermore, allowing corporations to be treated like individual citizens under the color of the law does further harm to the democratic concept because the monetary power of the corporation vastly outweighs the average person. Change has to be a grass roots effort and corporations and government alike may seek to keep us divided so change would become infeasible. The negative campaigning, finger pointing, and name calling keeps us divided instead of united. Imagine if a majority supported Occupy, politicians would be forced to listen or be made redundant. An ancient warrior/philosopher by the name of Sun Tzu astutely coined the divide and conquer strategy.

Re:Freedoms (1)

almechist (1366403) | more than 2 years ago | (#38539816)

The reality is that crime hasn't really skyrocketed and by all accounts might actually be rising at a much lower rate when compared with the population. We just have a distorted perception of rampant crime and danger as a result of what the media reports.

Crime isn't even rising, it's actually been going down for many years, but you'd never know that from today's media. It all about fear, make the people afraid enough and you can get away with almost anything. The America I grew up with, that I knew was the greatest country on earth, is fast becoming a memory. Parent should be modded up.

Re:Freedoms (0)

Anonymous Coward | more than 2 years ago | (#38539880)

You believe that who gets elected matters?

what a moron...

Re:Freedoms (1)

element-o.p. (939033) | more than 2 years ago | (#38540642)

Actually, I think that was Franklin, not Jefferson, [quotationspage.com] but otherwise, yes, you are correct.

Re:Freedoms (2)

jamstar7 (694492) | more than 2 years ago | (#38540852)

How in HELL are the citizens to blame when they've been cut out of the loop for decades?

Re:Freedoms (0)

CmdTako (2503216) | more than 2 years ago | (#38542296)

In a self proclaimed republic, or Nation-state as they like to be called these days, citizens are responsible for the actions of the state. The whole principle of Nation-State is that they get their power by it being delegated to the state by it's citizens.
The "I can't be held liable for the car crash because I had set the curse-control and was in the back of the RV making a sandwich at the time of the accident." defense doesn't work.

  Rome Statute of the International Criminal Court. (The Rome Statute was agreed upon in 1998 as the foundational document of the International Criminal Court, established to try those individuals accused of serious international crimes.) Article 33, titled "Superior Orders and prescription of law,"[5] states:
1. The fact that a crime within the jurisdiction of the Court has been committed by a person pursuant to an order of a Government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:
          (a) The person was under a legal obligation to obey orders of the Government or the superior in question;
          (b) The person did not know that the order was unlawful; and
          (c) The order was not manifestly unlawful.
2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.

PS Yes I am a stateless person.

Good decisions (1)

Anonymous Coward | more than 2 years ago | (#38539452)

Why is everyone shitting on the courts on /.? AT&T would have had MAJOR problems had they not complied with government spooks. I can't think of a single case in which corporate civil disobedience has succeeded. I think the decision with AT&T is better read in the context of the decision in Jewel v. NSA, where the court refused to let the government stifle the issue as a political generalized grievance and brought into question the relevance of the state secrets privilege. This is a Good Thing.

The government is the one with the guns here. AT&T has no interest in spying on any communications. I also agree with the above comments that it isn't unconstitutional for Congress to make something "not illegal" retroactively; if this were not a law involving a telecom corporation, no one would have issue with this.

They were paid to spy (1)

bigtrike (904535) | more than 2 years ago | (#38539868)

AT&T was paid for their time. They have an interest in making money.

Re:Good decisions (4, Informative)

compro01 (777531) | more than 2 years ago | (#38539928)

I can't think of a single case in which corporate civil disobedience has succeeded.

I seem to recall there being a little phone company called Qwest saying "No. Come back with a warrant.".

Re:Good decisions (0)

Anonymous Coward | more than 2 years ago | (#38540362)

The consitution just says you can make them get a warrent. It doesnt say anything about the *must* have a warrent.

So the judges acted correctly here. AT&T is not a gov offical so they could be or not be held liable for something (not by law which was passed in 2008). They are just guilty of being stupid. This is more likely a case of gov officals showing up and just asking for stuff and the corp cogs just nodding their heads going 'oh ok that sounds good' and at no point did they say 'hey you have a warrant for this right?'. Just stupidity is what it is. I would bet all of my money on the idea no one asked because they didnt think of it.

The NSA on the other hand acting as gov officals went after their own citizens and needed to get a warrant. So that case can go forward.

Want to make an affect on at&t tell people about it. "They let gov officals spy on you." That will straighten them up if enough people get together to make the point.

Re:Good decisions (0)

Anonymous Coward | more than 2 years ago | (#38541384)

This is more likely a case of gov officals showing up and just asking for stuff and the corp cogs just nodding their heads going 'oh ok that sounds good' and at no point did they say 'hey you have a warrant for this right?'. Just stupidity is what it is. I would bet all of my money on the idea no one asked because they didnt think of it.

I've worked for the phone company, granted in Canada, but same applies. The only information you give to officer without a warrant is directions to the exit.

Want to make an affect on at&t tell people about it. "They let gov officals spy on you." That will straighten them up if enough people get together to make the point.

Right, I'm sure they will immediately switch to the other non-existent phone company in the area.

Re:Good decisions (1)

Anonymous Coward | more than 2 years ago | (#38542062)

Qwest got bought by CenturyLink. Whomever made that call is no longer in charge. CenturyLink has no difficulty cooperating [dslreports.com] with the NSA.

EFF bunch of losers (-1)

Anonymous Coward | more than 2 years ago | (#38539738)

If you're just going to lose every case can you fuck off and let someone competent handle these cases?

Re:EFF bunch of losers (1)

element-o.p. (939033) | more than 2 years ago | (#38540696)

Are you stepping up to the plate? No?

Then, thank you, EFF, for what you've been doing. Thank you for raising the issues and at least attempting to bring about the change you want to see. The nation owes you a debt of gratitude, despite the grumbling from the A.C. above.

This is not acceptable. Here's what to do. (0)

Anonymous Coward | more than 2 years ago | (#38540636)

Identify which members of congress voted for retroactive immunity AND is in favor of SOPA.

We should vote them out of office for trying to replace admirable American values with communist Chinese values. They should be outed as commie sympathizers and kicked out of office.

It doesn't matter whether they are Democrats, Republicans, or independents. Vote them out of office if they try to destroy what made the United States the best country in the world.

Label them as "traitors" and "commies" (even if they are just plain crooks) because the masses don't understand nuance (which is why they keep voting for people who screw them over repeatedly.)

Keep it simple, civil, and nonviolent. Participate in primaries. Vote. Look for common ground with fellow Americans regardless of gender, race, religion, abortion, guns or anything else the "commies" typically use to divide us. Don't let them divide and conquer us.

If we sit back and allow "retroactive immunity" for crimes committed by the well-connected, then we neither deserve freedom nor liberty. They've already turned us into docile slaves.

Make a pledge to do one thing daily to make yourself count. Write a hand-written letter (have it proof-read) to your representative expressing what is important to you. Remember that the quality of politicians reflect the quality & participation of citizens. Be a good citizens. Help us make the USA be #1 again in many of the things that matter. Recognize the "divide & conquer" propaganda of traitors and commies when they bring up race, religion, guns, abortion, etc. to distract us.

Explanation for the verdict (0)

Anonymous Coward | more than 2 years ago | (#38540814)

Do they provide a rationale for this verdict?

Lynch's Law upheld again. (1)

CmdTako (2503216) | more than 2 years ago | (#38541748)

The term "Lynch's Law" was used as early as 1782 by a prominent Virginian named Charles Lynch to describe his actions in suppressing a suspected Loyalist uprising in 1780 during the American Revolutionary War. The suspects were given a summary trial at an informal court; sentences handed down included whipping, property seizure, coerced pledges of allegiance, and conscription into the military. Charles Lynch's extralegal actions were retroactively legitimized by the Virginia General Assembly in 1782.

Remember Echelon? (0)

Anonymous Coward | more than 2 years ago | (#38542264)

You never hear the talking heads mention echelon...

http://www.nsawatch.org/echelonfaq.html

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