Comment by ibramGaunt
8 hours ago
No one is giving the real answer to this question which is that these laws touch on the legality of capabilities the US does not want to acknowledge it has, and so it won't. Secret information in the US is like glitter - if you touch it, it spreads to you too.
It's not just "here's this law about spying in the abstract," which can be talked about in the open; it's "we're using the MIND READER 5000 under Title XVII powers delegated by the President to the Mind Reading Organization to conduct mind reading on persons X, Y, and Z." The legal briefings and rulings on the facts will by necessity reveal the nature of the technology or technique in question, and so, they are classified. If I recall correctly it was a big deal for the ACLU to get a lawyer a security clearance so they could interact with these courts, but I could be misremembering.
The real problem here is that if someone files a claim against the government and the government wants to keep the facts of the case a secret, you still need the case to have an outcome, and then you have two options.
The first is that you assume whatever is being kept a secret is something that doesn't favor the government, and then the government loses the case by default. This is the more reasonable option, because it mitigates the perverse incentive for the government to declare something a secret whenever it makes them look bad. But it has the obvious problem that then the government would lose some cases it should have won if the information could be published.
The second is that you assume whatever is being kept a secret is something that favors the government, and then the government wins the case by default. But that doesn't solve the problem -- you then have members of the public losing cases they should have won if the information could be published. And doing this makes the perverse incentive worse.
So why do we accept the second one instead of the first one?
Oftentimes the government drops the case. When people get convicted for things they did on Tor, and don't settle, the government often drops the case so they don't have to reveal how they got information about activities on Tor.
When Germany, which doesn't play by the same rules, got DiDW and then Boystown, that was quite revealing on how authorities can break Tor.
That's when the government is the one bringing the case to begin with. The issue is, if the government e.g. kills your spouse, why should the perpetrators get off scott free because the perpetrators want to keep something a secret?
Imagine the public tried to do that. Sorry, IRS/DoJ, the defendant is refusing warrants and subpoenas because it's a secret and without that you can't prosecute them.