I'm sure many of you have heard about Lavabit shutting down rather than cooperating with a plan to expose their customers' communications to the government. It was quite a laudable response and, indeed, there was much celebratory banter. Then everybody went home and moved on with their lives.

Then, in response to what had occurred to Lavabit, Groklaw (and separately, SilentCircle), announced it was shutting down, based on what had happened to Lavabit. Response ranged from mystified wonderment, to insinuations that it was a publicity stunt. How that publicity would benefit a company that had just shut down, I don't know. Such is the internet. I suspect that the underwhelming support and negativity arose from the fact that most folks had never heard of Groklaw before the announcement.

So What Was Groklaw?

Groklaw was started in 2003 as a blog that reported and discussed legal issues as they related to software. This was mainly centered on free and open-source software, and also included topics related to software patents, DMCA, RIAA and, as a natural consequence, did some reporting on commercial software and their parent companies.

So, how did Groklaw and Lavabit come to be mentioned in the same sentence?

It's pretty simple. Think of people's communications as candy, and software as the candy machine. The government has a key to pretty much every candy machine on the planet for the moment, and can gorge endlessly on their ill-gotten gains. In the real world, that would be every 8 year old's dream. But, much like that 8 year old's reality, the candy machines are continually being upgraded and being made more secure. So the government, unlike the 8 year old, undertook to perpetually have the key to every new candy machine that came on the market.

That meant that either they sabotage new software, or coerce companies to build a private back door into any new software, and make sure that their own software dominates the market.

So you can be sure that Groklaw was being watched like a hawk, thereby allowing the government inside information on any upcoming software, and any workarounds being planned to counter already compromised software. They did this in the usual fashion, by intercepting communications between Groklaw and its information sources.

So Why Did Groklaw Fold?

If you're any further than arm's length away from the founder of Groklaw, you'll probably never know what, if any, pressure was put on her, since to divulge that would make her a target. If there was in fact no pressure, then she made her move at the right time. She protected her sources, and potentially herself and her staff, by folding before the government came knocking and demanding things.

There's a good chance that the government would never have contacted Groklaw, because there was simply no need. As long as spying could be carried out successfully, there was no need to fix something that wasn't broken.

If you're not aware, Lavabit's founder folded after the government came for a visit, and did so publicly. Now that the prize has eluded the government, and in an embarrassing way, Lavabit's founder may never know peace again.

Why Don't They Fight, Instead Of Folding?

Because the frontline agency in this war by spying is the National Security Agency. The NSA pretty much can't be sued, because the ploy of first resort would be that in defending the suit, matters of national security would necessarily be divulged. This puts the entire proceeding on its deathbed, because precious few judges have the security clearance to even ask for the facts of that statement.

So, don't count on stopping the spying, and certainly don't count on recovering damages for harm caused. But, the NSA is really only what gets the ball rolling. The information they collect can be disseminated in myriad ways, and while you'll know you were spied on, you'll have little to no proof of who spied on you. Even worse, you'll have no control over who uses that information, and how they'll use that information.

If you have something the government wants, or if you're an 'undesirable', these are the weapons that will be used against you:

1. National Security Letter - This is essentially a subpoena, search warrant and gag order, all rolled up into one. Bush Jr and Attorney General Ashcroft made heavy use of these, there was a huge public outcry, they fell from sight, and now they're back (if in fact they ever went away). They originated in 1978 when compliance was voluntary. In 1982, compliance became mandatory. The original intent was to circumvent financial privacy laws.

If you are served one of these, you are required to turn over any requested material, including personal notes, intellectual knowledge, and spill any details related to any questions asked. You are also told that you cannot divulge receipt of this NSL to anyone for any reason, which naturally would include your attorney. NSLs are whipped up out of thin air by pretty much any alphabet agency that so desires, and are delivered by the FBI. They are not issued or overseen by judges.

There is conflicting information concerning the current status of NSLs. In September 2007, Judge Marrero of the US District Court for the Southern District of New York, struck down NSLs in their entirety. In August, 2008, that decision was upheld by the 2nd Court of Appeals. They should, therefore, be illegal.

The government continues to issue NSLs, under provisions of the PATRIOT Sunsets Extension Act of 2011. It requires the FBI to have reasonable grounds for an accompanying gag order, allows for disclosure of an NSL to one's attorney under a gag order, and allows for judicial review (after it has been served). Essentially, it's a defiance of the previous court order, waiting for a new challenge to be filed.

(A Wikipedia search of "NSL" is recommended.)

2. NDAA, National Defense Authorization Act - This is essentially an annual budget approval act for authorizing defense spending. But as with any Congressional action, it leaves us with far more baggage than it was designed to carry. The 2012 version authorized indefinite detention of US citizens by the military. This allowed for secret arrest, secret imprisonment, and didn't require getting your day in court. Obama promised he would not abuse this, but keep in mind he's made many other promises.

The 2013 version did nothing to overturn this provision. Additionally, it overturned a 68-year-old ban on the domestic use of government propaganda in the United States.

The Patriot Act, and AUMF - Authorization to Use Military Force, figure into this also. If you're designated a terrorist, you can 'legally' be disappeared.

3. FISA, Foreign Intelligence Surveillance Act - Essentially allows any form of spying the government so desires. Oversight is by a secret court. It's ironic that it's called 'Foreign', when it's only authorization is for use on US soil. In a nutshell, it means that there is no form of communication that is off-limits to the government. No client/attorney privilege, no doctor/patient confidentiality, no open-air private conversation in the middle of nowhere... And I hope by now that everyone has caught on that any and all electronic communication is included in that.

Only your thoughts are private, and I'm sure that's only for the moment.

4. Judicial Abandonment - Courts are increasingly siding with government and large corporate interests, even when it's an obvious miscarriage of justice. Plaintiffs seeking recourse against CorpGov better have deep, deep pockets, or stay out of the fray. 'Justice' is a major purchase, and beyond the reach of most in the US.

There are two classes of wrongdoing in historical law: Malum in se, (An evil obvious to all; think murder), and malum prohibitum, (a wrong designated by order of an edict or legislation; think drug laws). Courts have historically held malum in se to be a grave matter, and malum prohibitum to be open to interpretation. It seems now that in the United States malum prohibitum is the gravest of crimes, and above reproach; while malum in se is prosecutable only for those below a certain socio-economic threshold.

Why the government pretends there still exists anything resembling the 'Rule of Law', (Obama's favorite catch phrase), is beyond me. They can commit murder in broad daylight on Main Street, USA, and carry on unchallenged.

5. Blackmailing - Use of NSA-obtained personal details to 'mold' corporate & political leaders, and others.

6. 'Accidents' - Too many folks are having too many fatal accidents, at critical junctures of investigations, leaks, and scandals. Don't rule out death as a consequence of tangling with the government.

7. RICO Act / Prosecuting assets - You can have everything you own seized under the RICO act, which will get you a hearing but, unfortunately, your assets will have already been seized, so you'll have no attorney. This would be separate from any hearing for the underlying criminal allegations, and exoneration of the criminal allegations does not mean exoneration in the RICO proceedings. This presents somewhat of a 'speed bump' for the government, in that it does require court proceedings, and has the potential of failure for the government.

But as we all know, the freeway doesn't have speed bumps. That freeway would be 'drug proceeds' prosecutions. Anything and everything you own can be seized and characterized as 'drug proceeds', whereupon your seized assets will be prosecuted for wrongdoing, since they obviously came into being by a criminal act. Since you are not the defendant, you are not a party to the proceedings, and there's a 99% chance you will not be allowed any input into the proceedings. No criminal charge ever needs to be levied against you, and if there is, exoneration of that charge will have no bearing on the seizure of your assets. This is pretty much a slam dunk for the government, with little chance for failure.

Both of these proceedings arise out of a purported criminal act, yet they are prosecuted as civil actions?


Because in civil proceedings, constitutional protections that would be afforded you in a criminal proceeding are non-existent. Most notably, the right to legal representation. If your assets have been seized, will you have access to an attorney? Would you have any clue how to represent yourself?

This is set up specifically so that the targeted individual or company has lost the fight from the first point of contact. I don't think our forefathers were anywhere near Machiavellian enough to foresee this abuse of the legal system.

8. Captive Media - Eons ago, wrongs could be aired in the court of public opinion, via the media. Not so now. If you think the media will report wrongs on either a societal or individual level, you haven't been paying attention. An undesirable person or event will be either ignored or crucified by the media, but never helped. 'Conspiracy' news sites and word of mouth are the de facto information sources for truth in this country.

9. TSA, Transportation Security Administration - Were you planning on going somewhere? Not if you're on 'The List'. Don't be thinking you'll escape the cage after the government's taken notice of you.

Do You Get It Now?

As the weapons used in the War on Terror™ are increasingly turned inward, giving up pre-emptively seems reasonable when the carefully crafted 'no way out' provisions of these weapons are considered.

Those who have been paying attention know that if CorpGov casts a glance your way, it's time to run for the hinterlands. You're about to be crushed underfoot. No court, news reporter, cop, or fellow citizen will be coming to your aid.

That's why folks are just shutting down, rather than fighting. When you watch your neighbor being taken down, you realize that it's better to be already gone when they come for you.