IT and A National Security Letter Gag Order

fstyke writes "An article in the Washington Post (anonymous for obvious reasons) describes the trauma the president of a small US IT company faces after receiving a National Security Letter. This is sent by the FBI demanding information (140000+ have been sent between 2003/2005 according to the article). Makes for an interesting read of the side effects of receiving such a letter and its requirements for the recipient to remain silent about even the fact he/she has received it.'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.'"

Comments

what happens if you ignore it?

[axus]

Do you get put on secret trial in a secret court? Or secret penalties from the IRS? What he should do is look at the info himself, and decide if something is suspicious. If it looks like something illegal going on, help out the FBI, if not then make them get a judge involved, and protect the privacy of his customer in the meantime.

Bill Maher said it really well

[Dr. Manhattan]

"Liberals must stop saying President Bush hasn't asked Americans to sacrifice for the war on terror. On the contrary, he's asked us to sacrifice something enormous. Our civil rights... so when it comes to sacrifice, don't kid yourself. You have given up a lot. You've given up faith in your government's honesty, the goodwill of people overseas, and six-tenths of the Bill of Rights. Here's what you've sacrificed: search and seizure, warrants, self-incrimination, trial by jury, cruel and unusual punishment. Here's what you have left: hand guns, religion, and they can't make you quarter a British soldier. If Prince Harry invades the Inland Empire, he has to bring a tent...

But, look, George Bush has never been too bright about understanding 'fereigners.' But he does know Americans. He asked this generation to sacrifice the things he knew we would not miss: our privacy and our morality. He let us keep the money. But he made a cynical bet that we wouldn't much care if we became a 'Big Brother' country that has now tortured a lot of random people...

In conclusion, after 9/11, President Bush told us Osama bin Laden could run but he couldn't hide. But, then he ran and hid. So, Bush went to Plan B: pissing on the Constitution and torturing random people...

They say evil happens when good men do nothing. Well, the Democrats prove it also happens when mediocre people do nothing."

Full text here.

Re:It's a Fear

[Red Flayer]

Ephasis mine:

If they do, in fact, inform the individual that this is a matter of national security & that they will be bringing justice to the enemies of the United States, then I hope they are eventually published so we can all have a good laugh

I think you misspelled "cry".

But seriously,

and that they might serve as a reminder for victims of future schemes.

Serve as a reminder? I don't think this is a minor problem, this is a strong signal of the US's descent into a fascist state. Leaning on patriotism and fear of reprisal to get people to report on their neighbors (we're all neighbors in the digital era)? Sounds familiar.

I really don't want to Godwin the thread, but in this case there is a parallel that is best not ignored.

Re:Court Order

[Anonymous Coward]

IANAL, but without a court order signed by a judge, it's a strongly worded REQUEST.


It is a strongly worded REQUEST from people with lots of guns, a willingness to use them, and virtual immunity in court after the fact.

Re:This must change

[eck011219]

That is true in theory, but tell that to the agents at your door. I'm not saying one should follow unjust laws, nor am I suggesting one kow-tow to the officials. All I am saying is that the officials charged with the task of enforcing the law are going to do so until told otherwise by their superiors, which puts the average joe in a stinker of a position and leaves him making some difficult choices between doing what's right and doing what will preserve the safety of his family and himself.

It's actions like these by the FBI that exemplify the problems with the system. The government is going nowhere, and they have basically unlimited resources. They can just ride these things out. Look at the prisoners held indefinitely without trial or legal representation all over the place (Guantanamo is the most famous, but there are lots of places even in the states where it happens -- Cook County jail here in Chicago, for example). They're too scary for a lot of people, and therefore they get what they want. Simple oversight and adherence to the law by the agencies in question would fix a lot of this, but in the meantime, citizens, both innocent and otherwise, have some very real practical worries.

Re:This must change

[Red Flayer]

Indeed. There may be a moral responsibility to disobey the unconstitutional law, but there is at least technically a legal responsibility to obey it

Depends on your philosophical roots. The Catholic Church, for example, explicitly stated that the moral responsibility to obey one's superiors supercedes other moral responsibilities. This was in the 4th century CE (IIRC, may have been the 5th century), but has so pervaded Western thought that it remains a huge problem today.

This is a major reason why a lot of fundamentalist Christians continue to support the President -- it's cultural, even if they are not fully aware of it. Europe was forced to face this problem and try to find a solution in the 1940s and 50s; this remains a large area of psychological study even today. In the US, we touched on the subject during and after Vietnam, but culturally it still remains a problem.

There are a couple of books that go into it in depth, one is Conservatives Without Conscience light-ish read but very enlightening -- written by a former Nixon staffer, John W. Dean. Dean's book discusses more than this topic, but it's the foundation of his theory that the conservative movement has been taken over by people without an innate moral compass.

The Closing of the Western Mind: The Rise of Faith and the Fall of Reason -- the other, by Charles Freeman, is much drier, but really, in detail, explains the process by which the western culture became this way, with a focus on the church -- as well as the factors that led to these decisions being made. Not surprisingly, most of them came from a desire for security, an attempt to solidify power, or an attempt to destroy a rival.

I'm not saying that we don't have a moral responsibility to do the right thing even when ordered not to by our superiors (be they government, church, workplace, etc), I'm just saying that understanding the cultural reasons for people acting this way is the first step to rectifying the problem.

Re:This must change

[element-o.p.]

I'm not judging anyone who follows the law and obeys a National Security Letter--I'm not sure what I would do if I were on the receiving end of one--but did Martin Luther King, Jr. have children for whom he needed to provide? How about George Washington, Benjamin Franklin, Thomas Jefferson, Paul Revere, and the rest of the "Founding Fathers"? Did Mahatma Ghandi? I honestly don't know about most of these individuals but I'm pretty sure MLK did. And as I recall, Thomas Jefferson said something to the effect of "we study war so that our children may study math and science and so that their children may study music and art" which at least implies that he may have had children.

Part of providing for our children is providing for their freedom and their future. I would die inside if I elected to back down in the face of a tough choice and some day in the future, my daughter suffers because I didn't make a stand when I had a chance.

Re:This must change

[sustik]

I got the impression that the gag order became the more stressful aspect, he writes:

"Living under the gag order has been stressful and surreal. 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 wonder who can issue a gag order in the USA? An answer from a lawyer would be appreciated. It appears that the FBI thinks that they can issue gag orders without a judge's approval. I hope that a violation of such order is viewed leniently at least by a judge if not a jury. (On the other hand, violating the gag order may result in a terrorism charge and hence a loss of the right to the normal judicial process; and you do not want to wait 4+ years in military prison while Congress/Supreme Court/President figures the process out for you.)

He also complains that he was forced to lie:

"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."

I wonder why that is. Does the gag order describe this in detail? Why cannot you stay silent and say nothing or say that you are not allowed to discuss the matter based on your attorney's advice? (Using the latter form if you consult an attorney about this, which I certainly would do.)

My point is: can any (even judge underwritten) gag order force you to actively protect the information by telling a lie? What if your religion instructs you not to lie? I have no exact numbers how popular such religions are in the USA, but some are surely affected... :-;

Re:This must change

[einhverfr]

I am a former Quaker and currently a Norse Pagan. This is one area where both my past religious tradition and my current one are in complete agreement (though the viewpoint may be different). Although I speak from the perspective of a Norse Pagan here, it could be rewritten to be a Quaker view as well.

I believe that principle and troth to principle are more important than troth to other people. There are times and places to stand up for what is right, regardless of family encumbrances. In the end the only think that matters is how we have lived our lives, and it is better to be heroic and lose than conform to that which is unjust.

If I were to decide to fight something like this, it would be dangerous for my son and my wife. But I think that it is better to inspire people (including and especially my son) with deeds well done than to sacrifice those for the sake of comfort and apparent security. In the end, I have to trust that others around me who would see actions as noble would make sure my immediate family was taken care of.

We, like trees, grow not only into the light but into the dark as well. Both are necessary, and both in balance make us strong.