Last week, we brought you the wonderful news that a district court in San Francisco had struck down the law that allowed the FBI to issue its own "National Security Letters" (NSLs) -- secret search-warrants with permanent gag orders. Now, Matt Zimmerman, a senior staff attorney at the Electronic Frontier Foundation (who brought the case on behalf of an unnamed telco), explains in depth what EFF asked the court to recognize, how far they got, and what happens next:

The court made five critical findings. First, Judge Illston quickly rejected the government's dangerous argument that NSL recipients had no power to review the constitutionality of the statute. The government had suggested that the court could only review specific problems with specific NSLs, meaning that larger structural problems with the statute would remain untouched. As the court correctly noted, however, the statute specifically allows a court to determine whether an NSL is "unreasonable" or "unlawful" which includes determining whether the statute itself is unconstitutional.

Second, the district court found that the statute impermissibly authorizes the FBI to limit speech without constitutionally-mandated procedural protections. The Supreme Court articulated the scope for such protections in 1965 in Freedman vs. Maryland, a case in which it struck down a Maryland licensing scheme that required films to be submitted to a government ratings board prior to public showings. The problem with the statute wasn't necessarily its substantive reach as it was possible that films could be banned without violating the First Amendment -- if, for example, they met the First Amendment definition of "obscene." Instead, the court was concerned that the procedures for challenging a ban stacked the deck against theater owners...

... Fourth, the district court found that the statute was not "severable," meaning that Congress designed the NSL tool as a whole and that the powers it granted to the FBI were not intended to function separately if one of the powers was found to be unconstitutional. Because the nondisclosure provision was found to be unconstitutional on its face, the power to compel the disclosure of customer records must also fall. NSL statistics are consistent with this observation: 97% of all NSLs are delivered with a gag order.

Finally, the district court found that, regardless of other failings, the statute's standard of review violated separation of powers principles by forcing the courts to defer to the FBI's determinations and preventing independent review. It noted that a "[c]ourt can only sustain nondisclosure based on a searching standard of review." While courts do largely defer to the executive branch's judgment in national security matters, the standard in this statute required the court to consider the government's decision "conclusive" and only allowing the court to consider whether it was made in "bad faith." The court rightly noted that real judicial review requires more.

In Depth: The District Court's Remarkable Order Striking Down the NSL Statute

Canada's Conservative government has issued new regulations to librarians and archvists governing their free speech in public forums and online media. According to the Harper government, public servants owe a "duty of loyalty" to the "duly elected government" and must get permission from their political officers managers before making any public utterance -- or even a private utterance in an online forum that may eventually leak to the public, to prevent "conflicts" or "risks" their departments.

The Tories have also rolled out a snitch-line where those loyal to the party line can report on their co-workers for failing to maintain ideological purity.

“Once you start picking on librarians and archivists, it’s pretty sad,” says Toni Samek, a professor of library and information studies at the University of Alberta. She specializes in intellectual freedom and describes several clauses in the code as “severe” and “outrageous.”

The code is already having a “chilling” effect on federal archivists and librarians, who used to be encouraged to actively engage and interact with groups interested in everything from genealogy to preserving historical documents, says archivist Loryl MacDonald at the University of Toronto.

“It is very disturbing and disconcerting to have included speaking at conferences and teaching as so-called ‘high risk’ activities,” says MacDonald, who is president of the Association of Canadian Archivists, a non-profit group representing some 600 archivists across the country.

Regular readers will remember that Canada's librarians and archivists led a charge to save Canada's National Archives when the Harper Tories broke up the irreplaceable collections and flogged them off to private collectors at fire-sale prices.

Federal librarians fear being ‘muzzled’ under new code of conduct that stresses ‘duty of loyalty’ to the government [Margaret Munro/National Post]

(Thanks, Dad!)

Further to Xeni's post from yesterday about the landmark ruling by a San Francisco district court judge that the FBI may not issue "national security letters" (NSLs), the Electronic Frontier Foundation, who fought the case, has posted a good explanation about what NSLs are and why they were so creepy:

The controversial NSL provisions EFF challenged on behalf of the unnamed client allow the FBI to issue administrative letters -- on its own authority and without court approval -- to telecommunications companies demanding information about their customers. The controversial provisions also permit the FBI to permanently gag service providers from revealing anything about the NSLs, including the fact that a demand was made, which prevents providers from notifying either their customers or the public. The limited judicial review provisions essentially write the courts out of the process.

In today's ruling, the court held that the gag order provisions of the statute violate the First Amendment and that the review procedures violate separation of powers. Because those provisions were not separable from the rest of the statute, the court declared the entire statute unconstitutional. In addressing the concerns of the service provider, the court noted: "Petitioner was adamant about its desire to speak publicly about the fact that it received the NSL at issue to further inform the ongoing public debate."

"The First Amendment prevents the government from silencing people and stopping them from criticizing its use of executive surveillance power," said EFF Legal Director Cindy Cohn. "The NSL statute has long been a concern of many Americans, and this small step should help restore balance between liberty and security."

I am so proud of my friends at EFF this morning. Go team!

National Security Letters Are Unconstitutional, Federal Judge Rules

Philippe Sands, a professor of international law and prominent practicing lawyer, has resigned from the UK Liberal Democrats party. He is the third well-known party member to leave the LibDems this month. Dinah Rose, a respected human rights lawyer who represented Guantánamo detainee Binyam Mohamed, quit last week, and Jo Shaw, who ran for the LibDems in 2010 resigned from the party after giving a speech at the party conference in Brighton last weekend.

These principled people have quit over the LibDems' support of the "justice and security bill," which establishes a system of secret courts in Britain in which people who sue the government over torture and kidnapping will not be able to see the government evidence offered against them. The LibDem leadership supported this law, whipped their MPs to vote for it, and all but seven of the sitting LibDem MPs did, despite the enormous public outcry against it, including a condemnation from Lord Neuberger, the country's most senior judge.

The Lords -- a chamber full of senior lawyers and judges -- has rejected this legislation and sent it back, calling for a system of safeguards to be put in place before upsetting the principle of open justice going back to the Magna Carta. Parliament has ripped up the Lords' amendments, refusing even the most basic of safeguards in this legislation.

We voted for the LibDems to be the "party of liberty," but they've been anything but. With this latest betrayal of party principles, the leadership has scuttled any credibility it had left. There is simply no case for this measure. The proponents of the law act as though there is a flood of baseless claims of torture and kidnapping that the government has had to settle in order to avoid revealing the secrets of Britain's spies. The truth is that the government has had to apologise for lying about its role in illegal torture and kidnapping, and that most of its victims are unable to get justice even today. Indeed, we don't know for sure that the practice has stopped, and we can't, because we've had more than a decade of "war on terror" nonsense that says that the public must be spied upon at all times, but that politicians and police must be able to operate in unaccountable secrecy.

Here is some of Professor Sands's resignation, published in the Guardian today:

This part of the bill is a messy and unhappy compromise. It is said to have been demanded by the US (which itself has stopped more or less any case that raises 'national security' issues from reaching court), on the basis that it won't share as much sensitive intelligence information if the UK doesn't rein in its courts. Important decisions on intelligence taken at the instigation of others are inherently unreliable. We remember Iraq, which broke a bond of trust between government and citizen.

There is no floodgate of cases, nothing in the coalition agreement, nor any widely supported call for such a draconian change. There is every chance that, if the bill is adopted, this and future governments will spend years defending the legislation in UK courts and Strasbourg. There will be claims that it violates rights of fair trial under the Human Rights Act and the European convention (no doubt giving rise to ever-more strident calls from Theresa May and Chris Grayling that both should be scrapped). Other countries with a less robust legal tradition favouring the rule of law and an independent judiciary will take their lead from the UK, as they did with torture and rendition.

I accept that there may be times when the country faces a threat of such gravity and imminence that the exceptional measure of closed material proceedings might be needed. This is not such a time, and the bill is not such a measure. Under conditions prevailing today, this part of the bill is not pragmatic or proportionate. It is wrong in principle, and will not deliver justice. It will be used to shield governmental wrongdoing from public and judicial scrutiny under conditions that are fair and just. The bill threatens greater corrosion of the rights of the individual in the UK, in the name of "national security".

I've read each of these peoples' resignations with growing unease. I am a member of the LibDems, raised funds for them in the last election, campaigned for them, endorsed them, and voted for them.

I cannot, in good conscience, remain a member or supporter of the LibDems. There comes a point where the broken promises and corruption overwhelms the pretty words in the party manifesto. Deeds speak louder than words. The LibDems are the party of talking about liberty and voting in tyranny.

I resign from the party.

Update: Mark Thomspon sez, "Me and a Labour friend Emma Burnell record a weekly podcast called 'House of Comments' which is an informal chat about the week's (mainly UK) politics. I thought you might be interested in the latest one. I couldn't make it but Emma chatted to former Lib Dem Jo Shaw and current Lib Dem Linda Jack about Secret Courts and having edited it yesterday I think we got some very interesting insights into what has been going on behind the scenes on this issue."

This is a fascinating analysis of the bubble of unreality that the LibDem leadership now inhabits.

Philippe Sands quits Lib Dems in protest at support for secret courts

Nate Anderson's long Ars Technica piece on RATters -- men who use "Remote Administration Tools" to spy on others, mostly women, via their laptop cameras, and to plunder their computers for files and passwords -- is a must-read. Anderson lays out the way that online communities like Hack Forums provide expertise, tools, and, most importantly, validation for the men who participate in this "game." Anderson explains the power of software like DarkComet, which allows for near-total control of compromised computers (everything from opening the CD trays to disabling the Start menu in Windows); the dehumanizing language used by Ratters (they call their victims "slaves"); and the way that these tools have found their way into the arsenals of totalitarian governments, like the Assad regime in Syria, which used these tools to spy on rebels.

For many ratters, though, the spying remains little more than a game. It might be an odd hobby, but it's apparently no big deal to invade someone's machine, rifle through the personal files, and watch them silently from behind their own screens. "Most of my slaves are boring," wrote one aspiring ratter. "Wish I could get some more girls with webcams. It makes it more exciting when you can literally spy on someone. Even if they aren't getting undressed!"

One poster said he had already archived 200GB of webcam material from his slaves. "Mostly I pick up the best bits (funny parts, the 'good' [sexual] stuff) and categorize them (name, address, passwords etc.), just for funsake," he wrote. "For me I don't have the feeling of doing something perverted, it's more or less a game, cat and mouse game, with all the bonuses included. The weirdest thing is, when I see the person you've been spying on in real life, I've had that a couple of times, it just makes me giggle, especially if it's someone with an uber-weird-nasty habit."

By finding their way to forums filled with other ratters, these men—and they appear to be almost exclusively men—gain community validation for their actions. "lol I have some good news for u guys we will all die sometime, really glad to know that there are other people like me who do this shit," one poster wrote. "Always thought it was some kind of wierd sick fetish because i enjoy messing with my girl slaves."

Everything we do today involves computers and everything we do tomorrow will require computers. It's imperative that computers be designed to reveal themselves to their users and owners -- every program and process accessible to users and owners by design. But we continue to erode this fundamental through bans on jailbreaking and unlocking, and through the governmental trade in "zero-day" exploits intended for use in so-called cyberwar.

Meet the men who spy on women through their webcams [Nate Anderson/Ars Technica]

The Electronic Communications Privacy Act (ECPA) of 1986 is an ancient law that governs the privacy of the files you keep on servers, including your webmail and other private stuff. The 1986 law assumes that any file left on a server for more than six months is abandoned, and gives law enforcement the power to retrieve it without a warrant. Many attempts have been made to update this, but the nation's law enforcement apparatus always kicks up a huge fuss when anyone proposes closing this glaring loophole.

Now there's a new, bipartisan bill from Representatives Zoe Lofgren (D-Calif.), Ted Poe (R-Texas) and Suzan DelBene (D-Wash.) that will update electronic privacy law for the bold world of the 1990s (at least!). The Electronic Frontier Foundation's Rainey Reitman has more:

We’re pleased to see Representatives Lofgren, Poe, and DelBene take up this crucial issue, but the current draft isn’t a perfect solution to all ECPA woes. For example, the bill has room for improvement on the issue of evidence suppression for email content collected without a warrant. We hope this already promising bill can be further improved through amendments.

By introducing this reform bill, the 113^th Congress has an opportunity to enact powerful protections for everyday Internet users – which would be particularly appreciated, since all too often Congress uses its power to try to undermine our digital civil liberties.

If you agree that the government shouldn’t be snooping through inboxes without a warrant, then please sign our petition, which will automatically send an email to Congress demanding they reform ECPA.

New Bill Would Ensure Law Enforcement Gets a Warrant Before Reading Email

(EFF co-founder) John Gilmore summed up the accomplishments of the cypherpunks in a recent email: "We did reshape the world," he wrote. "We broke encryption loose from government control in the commercial and free software world, in a big way. We built solid encryption and both circumvented and changed the corrupt US legal regime so that strong encryption could be developed by anyone worldwide and deployed by anyone worldwide," including WikiLeaks.

As the 1990s rolled forward, many cypherpunks went to work for the man, bringing strong crypto to financial services and banks (on the whole, probably better than the alternative). Still, crypto-activism continued and the cypherpunk mailing list blossomed as an exchange for both practical encryption data and spirited, sometimes-gleeful argumentation, before finally peaking in 1997. This was when cypherpunk’s mindshare seemed to recede, possibly in proportion to the utopian effervescence of the early cyberculture. But the cypherpunk meme may now be finding a sort of rebirth in one of the biggest and most important stories in the fledgeling 21st century.

Ken Macleod's amazing dystopian novel Intrusion is out in paperback today. Here's my review from last March:

Ken MacLeod's new novel Intrusion is a new kind of dystopian novel: a vision of a near future "benevolent dictatorship" run by Tony Blair-style technocrats who believe freedom isn't the right to choose, it's the right to have the government decide what you would choose, if only you knew what they knew.

Set in North London, Intrusion begins with the story of Hope, a mother who has become a pariah because she won't take "the fix," a pill that repairs known defects in a gestating fetus's genome. Hope has a "natural" toddler and is pregnant with her second, and England is in the midst of a transition from the fix being optional to being mandatory for anyone who doesn't have a "faith-based" objection. Hope's objection isn't based on religion, and she refuses to profess a belief she doesn't have, and so the net of social services and laws begins to close around her.

MacLeod widens the story from Hope, and her husband Hugh (a carpenter working with carbon-sequestering, self-forming "New Wood") who has moved to London from an independent Scotland, and whose childhood hides a series of vivid hallucinations of ancient people from the Ice Age-locked past. Soon we're learning about the bioscientists who toil to improve the world's genomes, the academics who study their work, the refuseniks who defy the system in small and large ways, and the Naxals, city-burning wreckers who would obliterate all of society. The Naxals, along with a newly belligerent India and Russia, are a ready-made excuse for a war-on-terror style crackdown on every corner of human activity that includes ubiquitous CCTV, algorithmic behavior monitors, and drones in every corner of the sky.

With Intrusion, MacLeod pays homage to Orwell, showing us how a society besotted with paternalistic, Cass Sunstein-style "nudging" of behavior can come to the same torturing, authoritarian totalitarianism of brutal Stalinism. MacLeod himself is a Marxist who is lauded by libertarians, and his unique perspective, combined with a flair for storytelling, yields up a haunting, gripping story of resistance, terror, and an all-consuming state that commits its atrocities with the best of intentions.

Intrusion

The US Supreme Court has dismissed Clapper v. Amnesty International, which sought to overturn the secret, mass surveillance of the Internet by the NSA. EFF has its own lawsuit, which is still proceeding:

The court didn’t address the constitutionality of the FAA itself, but instead ruled that the plaintiffs—a group of lawyers, journalists, and human rights advocates who regularly communicate with likely "targets" of FAA wiretapping—couldn’t prove the surveillance was "certainly impending," so therefore didn’t have the "standing" necessary to sue. In other words, since the Americans did not have definitive proof that they were being surveilled under the FAA—a fact the government nearly always keeps secret—they cannot challenge the constitutionality of the statute. p> It’s shameful that the courts again have cut off another avenue for accountability regarding the NSA's warrantless and unconstitutional surveillance activities. But as disappointing as the Clapper decision is, the good news is the decision likely won't adversely affect our Jewel v. NSA lawsuit, which we argued in district court in December of 2012. Indeed, the Clapper decision makes the Jewel case one of the last remaining hopes for a court ruling on the legality of the warrantless surveillance of Americans, now conducted for over a decade.

The Ninth Circuit has already ruled that the Jewel plaintiffs have standing under settled law. The court's decision is based on solid ground because we have presented the court with evidence that dragnet warrantless surveillance has already occurred, through testimony and documents from AT&T and NSA whistleblowers. In fact, the court specifically differentiated the two cases in its Jewel opinion: “Jewel has much stronger allegations of concrete and particularized injury than did the plaintiffs in Amnesty International. Whereas they anticipated or projected future government conduct, Jewel’s complaint alleges past incidents of actual government interception of her electronic communications."

Supreme Court Dismisses Challenge to FISA Amendments Act; EFF's Lawsuit Over NSA Warrantless Wiretapping Remains