in a word, yes. they are winning. but this particular incident isn't really a loss on our part, it's a tactical retreat.
losing groklaw is a terrific blow to the public discourse, but maintaining groklaw in light of the now-apparent insecurities would have been worse.
there is no sense in continuing to use the clearnet for this purpose.
to continue doing so means allowing participants to be exposed to retribution from the state. it's like the discussion among activists about the use of facebook. sure, facebook has fantastic publicity and organizing potential, but when every action you take is preemptively thwarted by the police, that benefit is all for nothing.
so they retreat from facebook.
but they don't stop altogether, they just move offline or switch to safer networks. groklaw's work can still continue, just not in the same way nor in the same place.
its closing is both a strong request for something safer to fill the vaccuum, and a wake-up call to those who are still complacent:
look out, they have us running scared, we need to regroup, and you should help because this affects you too.
In a word, no. There's this notion that the NSA is spying on Americans because they're an evil organization hell-bent on crushing civil liberties. This flies directly in the face of the nature of the NSA - they have no "Ops" wing. They have no troops. They have no physical presence, in fact, outside of listening posts and analysis stations. They have more in common with the NRO than the CIA, in that they are essentially a deep hole full of technology that occasionally spins a secret or two out to their masters in order to justify their funding. I'm not at all pleased with total global surveillance by the NSA, but I've been aware of it for more than ten years (as would anyone be who was paying attention). Because of this, I know that they're snoopers who do nothing but filter through the floodwaters of discourse in order to find nuggets of gold that they can exchange for provisions at the trading post. I know that all of their work has been about making it easier and more effective for computers to deal with the information explosion brought on by the Internet and cellular communication. And I know that the biggest issues with the NSA snooping on everyone is that nature abhors a vacuum and that information has to go somewhere. The biggest objection to the NSA and CIA by foreign governments is that much of their labor is about industrial espionage - providing trade secrets for American companies in order to advance American economic hegemony. That's all WTO shit, though, and Americans could give a shit about us doing a little pre-game spying ahead of a G8 summit. Get the DEA and IRS involved, though? NOW we've got a scandal. And lo and behold - grumblings. If you've got a problem with the NSA, you need to address the root of the issue, not the method. Foreign governments crank on the NSA because they spy on industry. Americans just feel "violated." Well, why is that? Is it because there's a possibility your conversations with your dealer are being transcribed and passed along to the DEA? Then do something about drug policy. Is it because you didn't declare your online poker winnings? Then hire a better accountant. the NSA will ALWAYS SPY ON YOU. ALWAYS. But it's 100,000 people attempting to make sense of every internet post, every phone call, every email, every tweet, every text, every internet packet everywhere in the world always. And while the staff has gone up by a third since 2001, the volume of data they deal with goes up by a factor of ten every year. Quoth Bradley Manning: