Friday, March 23, 2007

Life under a gag order

If you want to get your inner civil libertarian riled, read on.

We know, of course, that the FBI has been abusing its authority to seek information without a warrant through National Security letters.

What you may not know is that keeping such abuse secret is made much easier by another FBI power: the gag order. If you're served an NSL you're not allowed to tell anyone -- even if the request is obviously improper. Even after the FBI has abandoned efforts to get the information from you, you cannot tell anyone they tried.

Here, then, is one person's story about living under an NSL gag order.

Three years ago, I received a national security letter (NSL) in my capacity as the president of a small Internet access and consulting business. The letter ordered me to provide sensitive information about one of my clients. There was no indication that a judge had reviewed or approved the letter, and it turned out that none had. The letter came with a gag provision that prohibited me from telling anyone, including my client, that the FBI was seeking this information. Based on the context of the demand -- a context that the FBI still won't let me discuss publicly -- I suspected that the FBI was abusing its power and that the letter sought information to which the FBI was not entitled.

Rather than turn over the information, I contacted lawyers at the American Civil Liberties Union, and in April 2004 I filed a lawsuit challenging the constitutionality of the NSL power. I never released the information the FBI sought, and last November the FBI decided that it no longer needs the information anyway. But the FBI still hasn't abandoned the gag order that prevents me from disclosing my experience and concerns with the law.

In other words, the people with direct experience with NSLs are prohibited from using that experience to challenge the FBI's power. A practical consequence of that is that debate over that power is truncated:

Without the gag orders issued on recipients of the letters, it is doubtful that the FBI would have been able to abuse the NSL power the way that it did. Some recipients would have spoken out about perceived abuses, and the FBI's actions would have been subject to some degree of public scrutiny....

I found it particularly difficult to be silent about my concerns while Congress was debating the reauthorization of the Patriot Act in 2005 and early 2006. If I hadn't been under a gag order, I would have contacted members of Congress to discuss my experiences and to advocate changes in the law.

Here's what it's like to have a gag order imposed:

Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case -- including the mere fact that I received an NSL -- from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.

There are legitimate security concerns related to NSLs. Notably, you don't want to tip off a suspect to the existence of an active investigation, particularly the information sought and why. But those concerns can be addressed more narrowly. A broad gag order is the equivalent of using a sledgehammer where a scalpel is needed, and it does more to protect the FBI from scrutiny than it does to protect national security.

Congress has warned the FBI that if they don't clean up their act, they will lose the ability to use NSLs. But Congress needs to do more than that: they need to revise the gag order provisions to protect national security in a way less damaging to democratic debate and less violative of civil liberties.

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