https://blog.patternsinthevoid.net/fbi-harassment.html
Previous discussion:
Magic pieces of paper like that really shouldn't be a part of our legal system.
I believe they rather want information which they cannot legally force her to divulge (otherwise see above), so they're trying their luck at intimidation.
To make things more difficult, the very contents of the letter itself are considered a national secret. Typical methods for serving papers would needlessly jeopardize the confidentiality of such papers. So one would presume that these methods simply aren't in the cards.
But seriously, this really stinks. If talking to the FBI wasn't going to have negative consequences for her then why would they choose to approach her like that?
The whole attitude by law enforcement that "anyone who doesn't 100% cooperate with us on our terms is an enemy and should be treated as such" really doesn't foster cooperation but it does foster fear and resentment. I think the whole Apple/iPhone debacle demonstrates that perfectly. It's gotten to the point that businesses are finding that they're in a better position if they lock themselves out of their own data and tell law enforcement to fk off because their hands are tied. It's ironic because this non-cooperative behavior is a direct result of the abusive and hostile tactics law enforcement use against everyone.
The whole thing reads like its either an agency involved in something unethical, or an agency so far removed from decent behavior that they no longer notice when they're menacing innocents.
No government has the right to withhold information beyond a clear and reasonable timeframe. 3 months seems reasonable. 1 year is out of the question.
The last discussion thread on this topic had more than a few people complaining that Isis (the given name of the developer in the article) is overreacting and paranoid, which is a saddening response to see. It exposes the privileges and unfortunate circumstances citizens find themselves in because these agencies refuse to prosecute their anti-terror investigations in well-thought out ways, instead pursuing facile leads without regard to the external effects they cause.
We've even seen evidence that these agencies deliberately manipulate otherwise innocent people into behavior that implicates them in their "terror suspect" criteria, so it's hard to believe that anyone in this situation could be somehow too cautious.
Terrorism is successful when our society becomes more of an authoritarian police state.
That's the tactics they use (don't ask how I know that). Be strong and welcome to Germany!
There is a german word for it - 'Zersetzung'. It was used by Stasi in former divided Germany and for sure has been used in recent years against other folks of the Tor community.
Examples?
Edit: Not really sure why asking for examples gets downvotes. Google news search definitely didn't turn up anything but this story.
Impressive for a LEO to state out loud he doesn't care about rights and due process. Like maybe he thinks he's above the law.
Get the person thinking they're not safe anywhere, so they stop going out, stop being mobile and stick to a more confined area. Once they've determined where she is, it makes it a lot easier to get in contact with her.
If she's smart, she start moving more frequently, and travel in states where they don't have field offices, avoid air travel and create a constantly moving target for the FBI officers trying to nail her down.
I don't think that's practical. It would cause her a lot of stress (not to mention cost quite some money) and sooner or later wear her out.
It also means that the FBI has reached their goal of intimidating her, since she is changing her behavior because of them (assuming that is their goal of course).
Regular citizens not charged with any crime having to keep moving to hide from LEO.
"the ends justify the means" at that point
I would like to see an activist attempt to challenge such an order, or even refuse to cooperate in an NSL where the FBI is acting outside of its legislative and Constitutional authority. However, the overwhelming incentive in any such situation is to cooperate. And from what I have read, even if the FBI is acting illegally, the subject of the investigation aided by the NSL may still be a fairly loathsome criminal -- so, you have to be quite a principled activist to risk prison time to make a civil rights statement, when this is directly going to benefit a badguy in the specific instance.
I'm not an American, you can speak with Police freely here in Slovenia, so maybe I understand things wrong?
Also, no you cannot "speak with police freely" in the US. Anything you say to an officer of the law can be, and it should be assumed that it will be, used to incriminate you. To make matters worse, you can be forced to give up your right to self-incrimination by being legally compelled to divulge information which incriminates you.
In general one should never speak to police in the US. Not even as the whiteness to a crime. For a great overview of the seriousness of why one should never talk to US police, view this lecture by a professor and former criminal defense attorney: http://youtu.be/6wXkI4t7nuc
Incidentially, the American Civil Liberties Union of attorneys (ACLU) has created a series of mobile apps to record police encounters because of their tendency to be problematic for citizens. For example, https://play.google.com/store/apps/details?id=org.aclu.mobil...
Given the behavior of bad apple cops and agents, she is right to feel threatened. If these are agents with good intentions, they have no reason to be afraid of a lawyer. If they are going to circumvent her legal protections, harassment is the minimum best outcome for her.
As soon as they continued after the very first 'no' it becomes harassment. Imagine this was a work setting, the FBI was a coworker of this individual, and they asked for a date. After the very first "no, please don't bring it up again" it becomes harassment.
Untrue, legally, at least in the UK where at least two incidents that cause you distress are required to have been committed by the same person/group. And then it's up to a judge to decide if the 'distressing' behaviour would be considered distressing by any reasonable person.
2) Imagine this power in the hands of a President with fascistic tendancies.
Going around a lawyer is a good way to lose a case against her, so maybe they weren't trying to make a case against her.
Maybe they actually had some real questions that involved her expertise or knowledge she might have had.
That is exactly what is happening.
Jail time does seem appropriate for non-compliance with a legally binding judicial order (I'm not endorsing or condemning the existence of these laws, btw)
Through the eyes of a person compelled to give testimony, we may reach a different conclusion. Consider a journalist who is granted immunity and asked to give up their source. They refuse and spend six months in jail, with few to no options to appeal for their freedom. This isn't theoretical. It happens occasionally.
The definition of due process can vary from the common definition of fair treatment under the law, to the view more often taken by lawyers and governments that it just means following the process of the law as accepted by the courts and respecting legal rights.
The reporter probably would feel as though they weren't treated fairly under the law, but the prosecutor would argue that they followed the law in full. I probably should not have used the phrase "without due process" in this case, since that will make it difficult to communicate with anyone holding views of the government or lawyers.
The notion that an NSL would be sent over internet postcard is laughable, whether or not it's true.
You would expect such a claims to be severely scrutinied (including seizing all involved hardware for forensic analysis), and if you'd be making a false claim while having disseminated the information yourself, that would be a crime by itself in this scenario.
Sure, they can do that, but the repercussions are something they certainly don't want to deal with.
When the FBI served me with a subpoena they were waiting in the tube when I walked out of a plane. I'm sure they'd be capable of going even further to serve someone with a NSL.
It'll definitely be very easy for them to do that if she ever wants to enter the US in the future.
Upon reviewing my previous response, I don't even see where I made mention of gender even to the extent of a pronoun.
I don't want to get too far off topic, but this is blatantly false, especially as far as law enforcement is concerned.
Lefkowitz v. Turley, 414 U.S. 70, 77 (1973) the Fifth Amendment “not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution, but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings
Government can only compel you to hand over information for third party which you possess. They can't compel you to DO something, as demonstrated by FBI v Apple recently.
In case anyone who's not familiar with the Apple case is reading this: The government didn't actually wait for the court to rule that they can't (which might or might not be the case, though my understand is that they would've probably ruled in favour of Apple), but rather withdrew the case after a third party unlocked the phone for them.
And yes, that could be the legal system working normally, but there have been cases where the government already knows about the exit node, but doesn't reveal that information to the judge while obtaining a warrant.
What do you think embassies are for?
It seems likely that Germany was cooperative, at the least. But they needn't be. These are spies we're talking about, afterall.
[1]: IIRC, in my country the courts ruled that a) SMTP logs of sending an email are not sufficient technical proof of delivery and b) even if it was, that's not enough because you cannot be expected to regularly check your email account and read new mail. Things might be different in the U.S., that's why I'm asking.
Quick google found several public examples of such subpoenas, like https://cock.li/transparency/2015-12-15-subpoena/00-2015-12-...
And in any case, if the recipient fraudulently claimed that they had not received the subpoena they'd be committing crime.
Edit: Am I wrong? Is the subpoena I linked a fake?
Hackers are bad at thinking "oh, I'll just not not not not do the thing, and it will all be okay, I'm so clever." They imagine they are Captain Kirk talking a computer to death. No one has ever been as smart as them!
We wouldn't let a CEO route around insider trading laws with a "I don't say this is a good time to buy my stock" canary. We wouldn't let a prosecutor under orders not to discuss a case with the public get away with it by selectively deleting a series of canaries.
Given that Reddit has exercised their warrant canary already and other big companies have them, apparently actual lawyers think it's a valid strategy.
In any case, I think that you may be able to play chicken with them over warrant canaries, since the people who use NSLs probably aren't interested in giving anyone standing to challenge them in court.
Again: if you are told not to communicate something, you don't communicate it. How come the CEOs who try all sorts of crazy things to work around insider trading haven't tried this?
Given that Reddit has exercised their warrant canary already and other big companies have them, apparently actual lawyers think it's a valid strategy.
You have no idea what is going on with Reddit or Apple. I know the EFF is eager to get people to sacrifice themselves on this altar. That says more about the EFF than about the state of law.
I think being put under a security order you can't discuss is a serious liberty problem. It doesn't follow that some crazy scheme is the right reply.
Legal opinions vary on this subject. Some feel (as you apparently do) that an order not to reveal the receipt of a NSL would require someone to leave a "warrant canary" in place. Others[1] feel that the US legal system does not permit the government to require someone to lie. The only way to find out for sure is for the government to prosecute someone for deleting a warrant canary[2] and either succeed or fail. This has never happened.
Your basic point that "the judicial system isn't stupid, and you can't just violate the rules but with a squirrelly definition and expect to get away with it" is true in general. Your example of insider trading laws is correct. But there are reasonable arguments that a warrant canary is a legitimate legal tactic.
[1] For example, https://www.eff.org/deeplinks/2014/04/warrant-canary-faq
[2] Or to make enough of a threat to do so that the person has standing for a declarative judgement.
So you don't leave a canary in place, it just expires and you don't put up a new one.
When were National Security Letters with gag orders prohibiting disclosure tested for constitutionality, in cases when the gag orders are violated and the government wants to punish somebody for disclosure?
Still, canaries are a bit complex. You obviously can't prove why one was taken down, because you can't speak about it.
People floated the idea of using long "canary lists" of different things ("haven't received more than one request for user data", "haven't received more than two requests", etc), but there's suspicion that it wouldn't be legal because it would count as revealing specific facts (and you could perhaps be compelled to remove all of them at once). As is, they don't seem to have been rejected or broken, but they have to take the form of one-and-done notices that something happened.
My guess is the insider canary would be secondary to the fact that you established a protocol for making use of one in the first place.
There is good reason to keep them (Police and Intelligence) separated, in germany we call this 'Trennungsgebot', this is a direct historical consequence of the Gestapo.
So, technically, is the FBI a police or an intelligence agency?
The CIA, a "pure" intelligence agency, has been competing with the FBI for decades, leading to the FBI becoming more and more of an intelligence agency over time (in addition to their law enforcement "police" activities).
Yes, the line continues to blur.
Logically, it would follow that if you don't know what a question IS, you can 'plead the fifth' to it on the basis that it could be incriminating. But again, IANAL.
You shouldn't either. They are not your friend.
But this is all beside the point, because an NSL could never be sent to anyone over internet postcard. Clinton discussed national secrets over email and look what happened to her.
The question is how things go when someone doesn't feel like playing ball. With email and not-signed-for letters there's no reasonable way to prove that the person saw the content. "Spam probably ate it." "It must have gotten lost in the mail." And so on.
So hand-served (and signed letter) subpoenas remain relevant for when people are dodging you. The fact that many people do respond to email subpoenas doesn't relate to whether non-respondents can be charged for their failure.
I'm well aware that it's easier to claim non-receipt, but that has no effect on the validity of the subpoena. An emailed subpoena is still valid.
>So hand-served (and signed letter) subpoenas remain relevant for when people are dodging you. The fact that many people do respond to email subpoenas doesn't relate to whether non-respondents can be charged for their failure.
I never claimed they don't, all I claimed was that email is a valid way of delivering subpoenas.
And I'm sure non-respondents can be charged for their failure if it can be proven that they actually saw the subpoena. Not all illegal activities are easy to prosecute.
If your words speak for themselves, I suspect none more than "owner of keyboard." I'd be delighted to be shown otherwise.
I remain agnostic, if not healthily paranoid- which seems to me to be the general sentiment in the comments on this post.
> In order for your subpoena / order to be processed, it must be sent to my lawyer. Do not send subpoenas to vc@cock.li or abuse@cock.li. Instead, E-mail or call me to request my lawyer's contact information.
It makes sense to have an established point of contact (which might be an email address) for LEAs if you're something like an ISP which regularly receives subpoenas. I'm more curious about subpoenas sent to individuals via email without any prior LEA contact.
It's also worth noting that the burden of proof for something like this is, at least in my country, on the sender's end, which is why all court communication is sent by registered post.
I'm sure they'll use alternate methods if the emails are ignored.