double-secret probation

My National Security Letter 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 or the national security letter that was served on my company. In fact, the government will return to court in the next few weeks to defend the gag orders that are imposed on recipients of these letters.

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 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.

I resent being conscripted as a secret informer for the government and being made to mislead those who are close to me, especially because I have doubts about the legitimacy of the underlying investigation.

I find it especially creepy that this guy's ACLU lawyers (apparently) advised him to lie when asked about the gag order instead of just saying "no comment". WTF?

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37 Responses:

  1. grahams says:

    I find it especially creepy that this guy's ACLU lawyers (apparently) advised him to lie when asked about the gag order instead of just saying "no comment". WTF?

    I doubt that was advice from his lawyers.. He speaks of lying "When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute".. He likely fears that "no comment" will be interpreted as "yes, but I can't say", and fears being thrown in the klink for blabbing..

    • jwz says:

      It is impossible for me to believe that whatever this guy's response was in that situation was not on the advice of his lawyers. Which means that they fear that "no comment" would be a dangerous thing to say.

      • grahams says:

        I find it more interesting that friends/clients of his randomly ask him if he's the one challenging the NSLs.. In order to ask that question, wouldn't they need to think he had received an NSL? And at what point does inadvertent leaking of information become violating the gag order?

        • I find it interesting that The Post claims it's an anonymous letter, yet somehow they were able to contact this person's lawyer, as well as review court documents that one would assume is related to this person's case.

          • wikkit42 says:

            It doesn't say it was written or contributed anonymously, just that they're publishing it anonymously.

            • I would imagine that if can't tell his family due to the gag order, he sure as hell wouldn't be able to tell the press.

              • wikkit42 says:

                Well, duh. If the gag order turns out to be legal, the yes he broke the law by telling them. But telling the press is much better for him than telling his family, and serves more purpose.

          • bifrosty2k says:

            I doubt the Post actually verified this crap :)
            They'd probably publish Richard M Nixon's unauthenticated letter to the alien congress of zendor.

          • dmlaenker says:

            I assume that the letter was not contributed anonymously but that they were required by law to withhold his identity.

          • rapier1 says:

            You are making the assumption that the person in question actually contacted the Post directly. More likely he gave the letter to his attourney who, acting as his representative, passed the letter to the Post and provided whatever verification they legally could.

            Also, I do not think a gag order prevents you from contacting a lawyer. While might not be the same authorization law I believe it may be applicable, from

            "Can I contact a lawyer when the FBI comes with a FISA warrant?

            Yes, contacting a lawyer is not considered a breach of the gag order because the conversations are covered by attorney-client privilege and cannot be publicly discussed. This was made explicit in the 2006 reauthorization. However, the FBI doesn't have to wait until you've received legal counsel before acting on the search warrant."

  2. I would imagine that it has a lot to do with the way society has it in their mind that "no comment" = I have something to hide, thus exponentially increasing the pressure to get a comment.

  3. killbox says:

    I work at an ISP, the other day a customer made a comment about how "for all they knew there were feds standing over our shoulders and we were helping them."

    I told him, well many of those conditions would contain a gag order to keep us from telling them we were working with the feds, but that as far as i knew it was perfectly legal to tell the customer that we were not working with/on behalf of the feds as long as we were not involved with any investigation! I then assured them that we were not! I told them I would not lie about such things so if i utter a "no-comment" thats when to worry! Such a system is only as good as the honesty of the individual.. but none the less its something.

  4. bifrosty2k says:

    This letter smells fishy honestly. I'm also curious why he went to the ACLU instead of the EFF, my faith in the ACLU is minimal at best in effectively dealing with an issue like this.

    I also shall translate:
    "the president of a small Internet access and consulting business" == guy with one server somewhere

    "The letter ordered me to provide sensitive information about one of my clients." == real name, login information, payment information, etc. Chances are this guy had very little information on the client anyways.

    "I never released the information the FBI sought, and last November the FBI decided that it no longer needs the information anyway." == If the information was actually useful, they would've knocked his door in, so by impeding their investigation they probably just found another way to get the information. Heck, if he has a managed server somewhere his provider could've just copied the HD and sent it to the FBI anyways.
    For the amount of money that people pay for some of this stuff, its not worth the hassle to have your stuff seized by the FBI...

    "Living under the gag order has been stressful and surreal." == Obviously this guy has never had a real girlfriend...

    "the inspector general's report suggests that large telecom companies have been all too willing to share sensitive data with the agency -- in at least one case, a telecom company gave the FBI even more information than it asked for" == SOP. Most of these companies have no interest in your privacy, most are more interested in currying favor with three letter agencies. Most telecoms have very little information on you anyways, so whatever they turn over is minor at best.

    When I worked for a large-ish ISP, we dealt with stuff similar to this, but mostly it was CP and DMCA notices. We received some subpoenas from Microsoft, but amazingly talking to their lawyers was fairly effective when all I had to say was "look, you've got their domain information and thats all the info we've got".

    If this was real, he probably would've gotten into hotter water for non-compliance...

    • jesus_x says:

      Because the EFF is not the catch-all constitutional protection organization, and even though he was talking about a n internet server, this is a larger constitutional issue and they would have referred him to the ACLU anyway. The ACLU has more resources to draw upon.

      As for the rest, if he went to court to challenge the letter, and the court stayed, it, he can't be punished for non-compliance because he wasn't guilty of non-compliance, he was challenging it's legality.

      • bifrosty2k says:

        his is a larger constitutional issue and they would have referred him to the ACLU anyway Yeah, but I'm saying I think the EFF is more competent to prosecute this case.

        and the court stayed, it, he can't be punished for non-compliance because he wasn't guilty of non-compliance, he was challenging it's legality.

        Afaik he's still guilty of non-compliance, but I need to ask someone about that.

    • wisn says:

      If the FBI says, "Give me info," and you say, "No," that's noncompliance.

      If the FBI says, "Give me info," and you say, "Not until after I challenge your ability to ask that," that's neither compliance nor noncompliance.

      If, after the court challenges are exhausted and the FBI's right to demand the info is upheld, you say, "Okay," that's compliance. Very, very delayed compliance.

    • rodgerd says:

      Because the EFF have done such a bang-up job of winning constitutional law cases, right?

  5. otterley says:

    I find it especially creepy that this guy's ACLU lawyers (apparently) advised him to lie when asked about the gag order instead of just saying "no comment". WTF?

    I'm currently taking my professional ethics course, so I've studied situations like this at some length.

    Consider Rule 1.2(d) of the American Bar Association Model Rules of Professional Conduct:

    A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

    This is known among practitioners and legal ethicists as the "good faith determination" exception. Although an attorney cannot counsel a client to violate the law, an attorney may assist a client in testing the boundaries of the law where there is some reason to question the validity of the law. This exception is frequently alluded to in cases involving the First Amendment, where a client wants to take some action that may result in his arrest. Typically, in a case like this, an attorney will counsel his client what the Supreme Court has held in past but similar instances, and that the client should not do what the Court has explicitly forbidden. The attorney, however, is not bound to dissuade the client from such conduct where the governmental prohibition of the conduct may be unlawful.

    • strspn says:

      Lying about whether you received a NSL isn't criminal or fraudulent.

      • otterley says:

        It depends; it may well be fraudulent. The elements of fraud are:

        1) Defendant makes a false statement
        2) Of material fact
        3) That is justifiably relied upon by the plaintiff
        4) To the plaintiff's material detriment.

        • curlyeric says:

          If he told the truth he could face criminal liability from disclosing the NSL.

          • otterley says:

            ... which is why challenging the constitutionality of the law is important. Nobody should be forced to make a Hobson's choice between committing a crime and defrauding someone.

            "I can't talk about it" is not, IMHO, an acceptable substitute: Saying so is effectively the same thing as admitting the truth, since anyone who did not receive an NSL letter has no reason to do other than deny it.

            • fanf says:

              Since I come from the same place as Hobson, I feel I should point out that Hobson's choice is "choose one out of one option" not "choose one out of zero options" nor "choose one out of two really bad options".

            • It's effectively the same, but is it legally the same? If I'm under this kind of gag order, am I required to go out of my way to prevent people from deducing that I am, or am I merely required not to take positive actions that reveal that I am?

              The library/ISP "we have not yet been visited by the FBI" signs seem to be on similarly shaky ground. Clearly their intent and effect is to reveal, by their removal, when you have been visited by the FBI, even if there's a secrecy order.

              AFAICT the relevant law is 18 USC 2709 (c), which says, "No [gagged person] shall disclose to any person that the FBI has sought or obtained access to information or records under this section."

        • rapier1 says:

          Of course if you look at the people he is lying to about this matter I don't think you can argue fraud is much of a possibility. I can think of how it may be possible in some theoretical situations but I think they are unlikely in this individuals circumstances.

  6. ziemael says:

    The whole thing is tiresome. What gag order supercedes the first amendment? Screw that throw me in the clink and prove the constitution means nothing. And we are afraid of terrorists why? We got something far worse; the FBI.
    I could type some random nonsense for all the good it would do. Fuck the FBI, fuck homeland security. Life, liberty, and the pursuit of happiness should dominate all legal issues otherwise the impeding parties should be tried for treason. Vous pardon moi Francias. Bon nuit.

    • curlyeric says:

      Gag orders do serve a legitimate purpose when given out by a Judge during the course of a trial where it serves to protect one or more parties. You have a clearly defined appeal process and the order has a clearly defined time limit.

      NSL Gags server no legitimate purpose except to spy on americans without judicial oversight, are not handed out by a judge, have no appeal process, and have no time limit. One of the big problems is that the wording of the law is such that contacting a lawyer to protect your rights could be seen as a breach of the gag ( catch-22 ). They are an abomination of everything the constitution, separation of powers, and the rule of law stand for.

      Time and time again we see the need for the executive branch to have judicial oversight less we descend *again* into secret spying on americans standing up for their rights.

    • dasht_brk says:

      fuck the FBI

      Well, I don't happen to agree, quite. They have done important work over the years and continue to (reports have it). Yet these f'ups, and earlier ones like them, are a consistent theme -- why is that?

      Another consistent theme with them seems to be their highly cellular nature. That is, they have lots of largely autonomous offices with insufficient cross-cutting observation, policy making, etc. They fail to be self-policing in exactly the way that Muller is saying before congress they should now be allowed to try to be. And within at least some of these cells -- an evident "attitude problem". Worst of all, this is part of the very same problems of information sharing that directly led to a failure to prevent 9/11.

      Historically, I suspect that this poorly cellular structure is the intentional of design of J. Edgar herself, paranoid little machiavellian fuck that she seems to have been. She attempted to take over and lead her own little police state, afaict. (And, no, I mean no disrespect whatsoever to TVs and TGs (perhaps the opposite) when I use the female pronoun for JEH.)

      A legitimate task for DHS here would be to, basically, force reform but in a sensitive way that doesn't too badly disrupt -- after all, the vast majority of what the bureau does appears to be excellent work, no? Hopefully congress will give a little deference in that direction, if it is available.

      Baby, bathwater, etc. But definitely a troubled organization.


    • hyperfl0w says:

      Here here. I was so mad I googled "shoot bush in the face" and found myself a home here. GOD what the hell.

  7. sordidatus says:

    Don't fall for the government's BS. I had a security clearance for many years and I am glad that I got rid of it. good luck and stay the course. Fight and don't give up. This "administration" is way out of hand with this BS and it is blatantly unconstitutional.

    Good Luck.

  8. rakafkaven says:

    I don't believe that he actually hides the details that thoroughly from people close to him. I believe that the law may technically require him to do so, and that on his lawyer's advice he decided his letter to the press should say "I cannot tell my girlfriend where I am going" rather than "if I followed the letter of the law, I wouldn't even be able to tell my girlfriend where I was going". That way he doesn't publish an admission of breaking the law, and his complaints carry a bit more rhetorical weight.