DOJ Asks Court to Keep Secret Legal Advice Memo on Surveillance

Via Blog at the Legal Times, the Department of Justice has filed this brief seeking to prevent an Office of Legal Counsel memo of advice to the FBI on electronic surveillance from being released to the Electronic Frontier Foundation.

The DOJ document "establishes the scope of the Executive Branch’s authority under federal law to obtain private communications records without legal process or a qualifying emergency, in spite of apparent statutory prohibitions to the contrary," the EFF lawyers said in their court papers.

Here is the amicus brief filed by several groups, including the ACLU, CREW, the Brennan Center and Washington Post.

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    And the hits just keep on comin'... (5.00 / 2) (#1)
    by Anne on Fri May 10, 2013 at 03:55:05 PM EST
    how do we fight this?  It's gotten to the point where I don't even have any confidence that, if the courts ruled against the DOJ, that it would comply - nor do I have any confidence that the courts will rule against the DOJ.

    Which puts us in the same place either way: the government is doing what it wants, to whom it wants, whenever it wants, and there's nothing we can do about it.

    If I had just woken from a coma, I probably wouldn't believe I was still in America...

    Maybe we just announce (5.00 / 1) (#2)
    by fishcamp on Fri May 10, 2013 at 05:23:20 PM EST
    what we're doing at all times.  Ok, you guys I'm going out to dinner now and have two glasses of wine.  The restaurant is six miles from my house but I'll be home soon so if you want to track me I'll leave my cell phone on.  The trouble with iPhones is you can't even take the battery out.  Maybe I'll go back to a dumb phone.  I fished over in the Everglades today and was out of cell range for a while and that's when I caught fish.

    The inability to remove the battery is one reason (none / 0) (#3)
    by caseyOR on Fri May 10, 2013 at 06:17:39 PM EST
    I do not have an iPhone. The other reason is that I am a semi-Luddite.

    I was told by a women at the Verizon kiosk at a local store that the Samsung Galaxy phones have removable batteries. So, that might be an option.


    turn off the location services on (5.00 / 1) (#4)
    by Jeralyn on Fri May 10, 2013 at 07:46:42 PM EST
    your iPhone and don't sync via the Cloud. Also turn them off on Twitter. Delete the email accounts you set up years ago and never use. Use a computer program for email instead of a web based one. Drop Facebook. Don't do iGoogle and use Google and You Tube as a guest rather than under your google account. Don't leave comments on sites using your FB login.

    Turn your phone off when you aren't expecting a call -- use your landline to make calls.

    Just a few things off the top of my head.

    I am not on either Facebook or (5.00 / 1) (#5)
    by caseyOR on Fri May 10, 2013 at 09:04:04 PM EST
    twitter. i always use google and youtube as a "guest." I only turn my cell phone on when I am expecting a call or need to make a call on the cell, like when I am away from home.

    I do have gmail accounts. I should get rid of them.

    A question: if you have an iPhone and use it to go on the WWW, doesn't that leave a trail for the feds?

    Also, can't you be tracked by your phone, even if it is "off" as long as the battery is in the phone? Ben Mazel told me I could, and I believed him.


    Well (none / 0) (#6)
    by sj on Fri May 10, 2013 at 11:10:22 PM EST
    You can make cell phone/wallet Faraday cage. I found that when I heard that the iPhone collects "continuous information about the whereabouts of their users".  I am assuming that such a wallet would stymie the iPhone data collection, since it can neither make nor receive phone calls while enclosed in a Faraday cage.

    I don't think you need (5.00 / 2) (#10)
    by Jeralyn on Sat May 11, 2013 at 12:08:30 PM EST
    to delete your gmail account, but make sure you don't link it to your You Tube accounts and aren't signed in when you read the news and do searches.

    I don't see how Apple would know where your phone is if it is turned off. Also, if you turn off the location services on your iPhone, your information will be shared with far fewer people. I always hate when I type a search in Google and something in Denver comes up. I never told them that's where I am. And if I go somewhere else, they give me search results for those places. They are using my location to do that. When I turn off location services, that doesn't happen.

    Down side: My favorite feature is "Where's my iPhone," which will let you remotely erase all data on your phone if it's been stolen. You can't have that feature without turning on location services.

    The information they get can be used against you. For example, let's say you are a year behind in your taxes and you tell them it's been a slow year, you need more time. If they read in your email account you bought a ticket to Australia and and are getting a brand new Ferrari serviced, red flags are going to go up.

    When you get stopped for a traffic ticket now, the cops have the ability through various companies that partner or are owned by Lexis, to check much more than your license and registration, including your credit history. There's very little law enforcement can't get.

    I also hate that You Tube keeps track of videos I've watched and bases suggestions on that. And Amazon makes suggestions based on things I've clicked on whether I've bought them or not. If I had the time, I would delete and open a new account every month or so -- so at most the Government could get one month of what I read and buy and watch.

    I'm amazed at how many people don't set their FB settings to private. Most of my settings are available "only to me." Others are available only to "friends." Since my account is a joint one for me and TalkLeft, there are hundreds of friends I have no idea who they are. If any of them get investigated, and I'm on their friend list, that could mean my stuff gets examined as well.

    I never post on anyone's wall. If I want to send birthday greetings or respond to something one of my "friends" has written, I send them a private message through FB so no one else (except the Government of course) can see it.

    These are all just partial solutions but they at least reduce the amount of information they get about you if they decide to come looking due to your connection to someone else they are investigating.

    On Twitter, I think it's a good idea to limit the number of people you follow to those you are really interested in.

    I can envision a future bail hearing for some client where the Government argues he's a risk of flight because he has email accounts that are not under his real name or posts usig a pseudonym.

    If you're worried that you might get arrested during a traffic stop (a la Reese Weatherspoon) you can get a free app like my friend Tommy Spina, a lawyer in Birmingham, AL provides for that purpose. While the cop is in his car checking your info, you press the red button on the app and send him a page with what's going on, which he then gets immediately via pager, in text form. When you set it up, you add the name and phone number of the person you would want notified. They will get the same text Tommy does. And if your location services are on, it will provide both of them with your location so they know which jail you are likely to end up at. No need to wait until you are booked and begging for your one call which could be hours away. Once you see how Tommy's works, you can find a lawyer in your area that has it.

    The internet was so much more fun a decade ago when we didn't realize the extent of their snooping capabilities. Pretty soon, we'll be back to snail mail and faxes.

    Anyone have any other ideas?


    If the battery is in your phone it still pings (5.00 / 2) (#12)
    by caseyOR on Sat May 11, 2013 at 02:57:23 PM EST
    the cell towers even if the phone is turned off. The signal is not as strong as it would be if the phone was turned on, but there is a signal. And that lets the government triangulate your location.

    Mazel was quite clear about that when I asked him on a long ago thread here at TL. Also, there has been at least one case here that I know of where a woman whose car had gone off the road and down a ravine was found a few days later because of that pinging even though her phone was off.

    A study by MIT and Louvain University in Belgium shows how accurately ones locations and life patterns are revealed by tracking the movements of one's cell phone, even if the phone is turned off.

    A new paper published in Nature called "Unique in the Crowd: The Privacy Bounds of Human Mobility," claims that 95% of mobile phone users can be identified based entirely on their patterns of movement. Mobile phones routinely ping cell phone antennas as customers travel from place to place, even if the phone is not being used--and even if the phone is turned off. The only way to prevent a phone from pinging antennas is to physically remove the battery.

    Snicker (none / 0) (#7)
    by Slayersrezo on Sat May 11, 2013 at 03:43:44 AM EST
    Too much concern with privacy is going to stand out just as much as too little.
    The government is gonna ask what do YOU have to hide?

    I suggest actually engaging in a few of those activities just do it in a circumscribed way.
    You know...gotta look normal.


    Internet Privacy (none / 0) (#9)
    by squeaky on Sat May 11, 2013 at 10:50:58 AM EST
    Great info Jeralyn!

    Also, many recommend using VPN software (virtual privacy network) or Proxy software, for all web based activity on your computer.

    TOR is popular.

    That Tommy Spina app (none / 0) (#11)
    by fishcamp on Sat May 11, 2013 at 12:54:54 PM EST
    is great.  Thanks.