Judges Question Whether National Security Letters Need To Come With Gag Orders
from the where's-that-copy-of-the-constitution? dept
The Patriot Act allows the FBI to issue "National Security Letters" to ISPs and other organizations, seeking information on users of those service providers -- with an automatic gag order forbidding the service provider from telling anyone that they have received an NSL. Not surprisingly, this resulted in the NSLs being widely abused, with the FBI issuing them in many, many cases when they were not appropriate. But, of course, since no one could complain, there was no incentive for the FBI to actually follow the rules. A panel of judges is now reviewing the overall constitutionality of the gag order on NSLs -- and, so far, they seem skeptical. It seems ridiculous that the FBI should be allowed to impart an automatic gag order without any sort of judicial overview -- especially when it's already been shown that the FBI can and does abuse this power quite often.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: fbi, first amendment, gag orders, national security letters, nsls
Reader Comments
Subscribe: RSS
View by: Time | Thread
Go back to bed America,
[ link to this | view in chronology ]
Lots of luck on that
[ link to this | view in chronology ]
But we need those gags
[ link to this | view in chronology ]
And in the words on Benjamin Franklin...
[ link to this | view in chronology ]
What happened to the FBI?
Never mind its THEIR JOB to follow due process.
Never mind they are there to PROTECT and SERVE, and due process is one form of protection for all of us.
Years of party propaganda is finally creating generations that do what they want:
The Republicans are more likely to go for the power. Become law enforcement, or join the military, work the bureaucracy. They think anyone that doesn't agree with them is a "dirty hippie" that needs to be put down.
The Democrats are more likely to avoid those things because it "all police are pigs" and ignore the founding ideology of these institutions. They'd rather sit and complain than DO something about it.
And then most of the rest are either crazy or ignored by the majority of the population and are slowly being driven either into despair or insanity by the fact the rest of the sheeple don't see what's slowing happening to us.
Thank god they are retarded. They moved too fast. Now the number of people see what is happening is growing. Took a manipulative bastard like Bush to be in office to push most of us over the edge.
Whomever is the next president better fix this shit. Or there will be hell to pay. I don't like the idea of a facist America.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
The fact that . . .
[ link to this | view in chronology ]
Re: The fact that . . .
1993 - The first World Trade Center bombing - and Al Queda was not counter attacked
1996 - Khobar Towers bombing (Saudi Arabia) - and Al Queda was not counter attacked
1998 - U.S. Embassy bombings (Kenya/Tanzania) - and Al Queda was not counter attacked
2000 - USS Cole Bombing (Yemen) - and Al Queda was not counter attacked
How about the Democrat President before Clinton, Jimmy Carter? He allowed radical Islamic forces to take over a US Embassy and hold our citizens hostage for 444 days.
In contrast, the Iranians KNEW President Reagan would do something about the hostage crisis so they released the hostages within an hour of Reagan's inauguration - after holding them for more than a year under the feckless Carter.
The problem with you Bush and Republican haters is, you are all cowards and would rather see your countrymen killed or held hostage than risk one of your greasy, matted hairs to do anything about it.
[ link to this | view in chronology ]
Re: Re: The fact that . . .
I'm sorry, but anybody who honestly believes shit like this really doesn't deserve the essential liberties that this country provides.
[ link to this | view in chronology ]
Re: Re: Re: The fact that . . .
The posting I replied to cited "after 8 years of the Bush administration." Put down your bong and get some situational awareness.
If the smoke in your eyes didn't allow you to see that political comment, when did it clear so you could read mine?
Inhale deeply and go back to sleep ...
[ link to this | view in chronology ]
Re: Re: Re: Re: The fact that . . .
Yes, you replied to a comment regarding "after 8 years of the Bush administration" with a typical straw man argument. Here, we're talking about how the rights of American citizens are being abrogated (go look that one up, I'm sure it's too many syllables for you). You, on the other hand, would just prefer to bash Democrats, or anyone else who doesn't believe in the bullshit to which you subscribe.
And yet you claim there's something wrong with us. Did your mommy tell you to do that?
[ link to this | view in chronology ]
Re: Re: The fact that . . .
> And in the 8 years of the Clinton administration we had ...
When one falls back on defending Bush by saying "at least he's not Clinton"... one has already lost the argument.
The issue at hand is accountability and preventing abuse of power. If it's is the FBI's position that NSLs are always justified, then they should have no problem having their decisions reviewed by the judicial to verify this.
Anyhow, thanks for your insightful comments.
[ link to this | view in chronology ]
Re: Re: Re: The fact that . . .
After 8 years of Bush, we have killed most of the Al Queda leadership, and have driven the rest of Al Queda leadership into caves and mud huts instead of staying in the Dubai Hilton, and freed millions upon millions of people from tyranny in Iraq and Afghanistan.
Yet all you folks have to say about it is, "Whaaa! Whaaa! The FBI *may be* reading my e-mail. Whaaa! Whaaa!"
[ link to this | view in chronology ]
Re: Re: Re: Re: The fact that . . .
. . . we have killed most of the Al Queda leadership, and have driven the rest of Al Queda leadership into caves and mud huts. . .
If only any part of that statement were true, we could almost take you seriously. But we won't, because you're a whining pussy.
[ link to this | view in chronology ]
Re: Re: Re: Re: The fact that . . .
The question is about checks and balances on the FBI's use of NSLs. Doing away with the automatic gag order does not prevent the FBI from acting when they feel there is a legitimate threat that requires information that can be gained through the use of such letters. However, *not* having the automatic gag order helps keep the FBI honest. For example, not misusing the letters for political reasons- for one party to spy on the other, or harassing citizens for supposed "un-American" activities. The FBI (and the Office of the President) have been guilty of this in the past- why would anyone think that they're not capable of it again?
This is about much more than simply spying on millions of citizens innocuous emails.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: The fact that . . .
Suppose a bunch of e-mail from known Al Queda are being sent to/from IP addresses hosted by Acme ISP. So the FBI comes in and says they want to monitor the traffic for key words and phrase patterns. However, there's no automatic gag order.
So Fred Smirtz, a low level nobody who works at the ISP, tells his buddy that the FBI was in snooping around and is monitoring e-mail at the ISP.
His buddy is one of the malcontents on this forum, so he posts everywhere he can about how the FBI is monitoring Acme ISP email traffic and violating the poor terrorists' civil rights.
Not surprisingly after that, the only thing the terrorists are emailing about is a bunch of "Allah Akbar" proclamations.
Three weeks later, the Al Queda cell that had been receiving e-mail through the monitored ISP receive launch orders via e-mail sent through their new ISP. Three thousand Americans are killed in the subsequent attack.
The post-mortem "We Never Learn From Our Mistakes" Commission identifies that the ISP wasn't automatically put under a gag order. Upon hearing the FBI was involved, the terrorists had shifted to a new, unmonitored ISP when they learned the FBI was involved. (Obviously.)
Everyone is shocked that something so obvious as a gag order wasn't automatically in place. Everyone, including the malcontents here, wring their hands why the system failed them yet again. Legislation is passed and executive orders drafted so it would never happen again.
Within a few years, the malcontents again begin posting about how unconstitutional the new legislation is and how gag orders shouldn't be automatic. Liberal courts intercede and the automatic gag orders are lifted.
Meanwhile, a bunch of e-mail from known Al Queda are being sent to/from IP addresses hosted by Bravo ISP. So the FBI comes in and says they want to monitor the traffic for key words and phrase patterns. However, there's no automatic gag order.
So Wilma Jones, a low level nobody who works at the ISP, tells her girlfiend that the FBI was in snooping around and is monitoring e-mail at the ISP...
People die, security is enhanced, whiners whine, security is relaxed, people die, security is enhanced, whiners whine, security is relaxed...
And so it goes.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: The fact that . . .
2. If there needs to be a gag order, the FBI should get approval from the FISA court. It's pretty much a rubber stamp, but at least it has some potential to be meaningful oversight, rather than the guaranteed lack of oversight we have now.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: The fact that . . .
I'll tell you what. You sue the federal government tomorrow with that claim. When the Supreme Court rules in your favor, that you individually had your civil rights violated, I'll give you $1,000 in recognition of my being wrong. However, if they rule against you, you have to pay me $1,000. However, if you won't file the lawsuit, we can all just agree you're a whiner.
When should surveillance be conducted and a gag order NOT be in place? After the word is out because there was no gag order, how long do you think terrorists will allow their email and web requests to be monitored before moving to a new ISP.
You know, a little common sense and a lot less self-righteousness would go a long way in this discussion.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: The fact that . . .
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: Re: The fact that . . .
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: Re: The fact that . . .
Then you restated your original claim that automatic gag orders with no oversight are a good thing, with your original arguments about terrorism restated. You didn't address the need for oversight that I mentioned and instead act like there are only two possibilities: no gag orders at all, or automatic gag orders with no oversight. Are you even willing to discuss a middle ground?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: The fact that . . .
Let me ask you this: If you think the government should be allowed to ignore our constitutionally protected rights, why bother having a constitution? In fact, you can have exactly the kind of government you want, right now: Move to China. They're more than happy to go through your belongings, decide what you can't and can't see, read and hear, tap your phone, block your internet connection, and so on. Seems like that's what you want, so why not just STFU and move there?
And tell me this: Exactly (and I mean exactly, don't make up any more fantasies) did George W. Bush do about Al Qaeda before 9/11?
Put your tin foil hat back on and go back to the bunker. You're the only whiner here.
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: Re: The fact that . . .
Republicans take note too, China has NEVER been attacked by terrorists, they must be doing something right huh?
[ link to this | view in chronology ]
Re: Re: Re: Re: Re: Re: The fact that . . .
If the FBI has true belief that someone is a terrorist than they should have proof that they can bring to a judge and get a warrant and a gag order. Why is that so bad?
I am willing to live with a little risk to protect my rights, your rights, and our children's rights. I'm sorry if you aren't American enough to want the same.
[ link to this | view in chronology ]
Re: Re: The fact that . . .
How satisfyingly amusing that you're that brain-damaged. Maybe you should loosen the tin-foil hat.
[ link to this | view in chronology ]
Re: Re: The fact that . . .
As we have seen in the past few elections, the will of the people is not what elects a president, so it's not that far fetched to consider it.
[ link to this | view in chronology ]
Re: Re: The fact that . . .
I could take factual issue with nearly everything in your post, but to be honest I am not sure you have a good enough foundation in history or politics for it to be worth the hassle (seriously, I am not being factious or flippant, but you have been heavily propagandized). I will just point out one thing to you as apparently they don’t mention it on "talk radio". Do you remember who was president when militants Muslims attacked a marine barracks in Lebanon. The single most deadly act against the united states military outside an active conflict in the history of our country (still to this day)? Do you remember who was president and what he did in response . . . look it up, learn and start thinking for yourself, your country needs it.
[ link to this | view in chronology ]
Re: The fact that . . .
But trying to explain that to some people is pointless.
[ link to this | view in chronology ]
Re: Re: The fact that . . .
[ link to this | view in chronology ]
Oh Boo Hoo
Anyone who knows anything about the Internet knows it's not inherently secure. Without encryption, sending an e-mail through the Internet is like sticking an envelope on a bulletin board with the words "Do Not Open" on it.
I only wish you could all be in one community. Then Homeland Security and the FBI could give you all the protection you deserve - nothing. The President could give you what you want by announcing there will be no terrorist surveillance in your community. He could send out the message that Al Queda is free to target your community with no fear of prosecution.
Oh what bliss! The perverts could go back to feeling safe viewing kiddie porn online. Anarchists could email their favorite recipes for making IEDs. The best result is, none of the rest of us would have to listen to you all whimpering anymore.
Then again, after a few of your elementary schools are blown up and your child's body parts are rotting in plastic bags, I guess we'll all have to listen to your boo hoos about how the FBI did nothing to protect you.
Whiners! We can't survive with you, but we can't isolate you in one place so you only harm each other.
[ link to this | view in chronology ]
Re: Oh Boo Hoo
[ link to this | view in chronology ]
Re: Re: Oh Boo Hoo
How strange it must be to live in your world where it's not illegal for Fred Smirtz at the ISP to read through anyone's e-mails looking for good porn, but it should be illegal for the FBI to run the same e-mails through a computerized search filter looking for the words "bomb" and "elementary school."
Wait a minute ... stand by ... my wife just e-mailed me ... Oh my God! She wants me to bring home a gallon of milk. Again!
Whew! I hope the FBI didn't read that ...
[ link to this | view in chronology ]
Re: Re: Re: Oh Boo Hoo
[ link to this | view in chronology ]
Re: Re: Re: Oh Boo Hoo
What a brain-damaged idiotic troll. That is illegal (at least in the US).
[ link to this | view in chronology ]
Re: Oh Boo Hoo
Please, let's isolate all of the jackasses who think the government should do whatever it wants in the name of protecting us from the boogeyman, so that we can begin electro-shock therapy on all of you.
I'll bet you piss your pants every time someone says "terrorist" or "Al-Qaeda." Let's call this what it is: You claim we're whiners, when in reality, you're the biggest chicken-shit pussy on the planet. Go ahead, hide in the closet with the FBI watching over you.
What bliss it would be if all of you and your ilk were all in one place! You could go back to feeling safe, sucking at the tits of the FBI. You fucking baby.
[ link to this | view in chronology ]
Re: Re: Oh Boo Hoo
I'm sure when you get get a job and move out of your mother's basement, you'll find there are many people who don't think just like you.
That's a good thing - for all of us.
[ link to this | view in chronology ]
Re: Oh Boo Hoo
[ link to this | view in chronology ]
Re: Oh Boo Hoo
The reason the internet is not secure is nobody has ID! Your name is Coward, perfect, are you human or database?
[ link to this | view in chronology ]
[ link to this | view in chronology ]
> Hey dickless,
Site maintainers- I wonder if it would be possible to publicly display IP addresses when someone posts anonymously? Or heck, just do away with anonymous posting altogether?
[ link to this | view in chronology ]
Re:
I suppose they could start by deleting your post.
[ link to this | view in chronology ]
All of the hate, guys. All of you are shouting at each other; probably most of you are all at least twice my age: act like it.
All of our presidents in the last, oh about 100 years, have been really shitty. There have been a few, but not many. The Leftists think that Carter/Clinton/Obama are GODS. The Republicans believe in a non-existent god. Which is worse?
And the global warming thing: globalwarming.org
This is not a political forum; stop acting like it is.
[ link to this | view in chronology ]
Re:
All of the hate, guys. All of you are shouting at each other; probably most of you are all at least twice my age: act like it.
Is this like a reverse sig? Something you post at the beginning of every one of your messages? We probably don't need to know any of this about you, and we certainly don't need to read all of it every time. Just a suggestion.
[ link to this | view in chronology ]
Re:
Is there someone else who is authorized to declare you independent? I'd like to know if they've declared me independent, too, or if I have to do it myself.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
Actually, I wouldn't be surprised to find that you posted some of those other trolls. I'm sure you understand...
[ link to this | view in chronology ]
Anonymous announcements
Just because there is a gag order doesn't mean it's not possible to circumvent the system.
[ link to this | view in chronology ]
Re: Anonymous announcements
The prisons are full of people who thought they could "get away with it". It is better to change the law than to break it.
[ link to this | view in chronology ]
Just because there is a gag order doesn't mean it's not possible to circumvent the system.
Sure. But I'm guessing if the subject of the gag order did that, they would be headed to Federal Pound Me In The Ass Prison, or at least the FBI would do everything in their power to see that it was so. Even if they failed, they could make someone's life mightily unpleasant. I doubt it would matter whether they could link the communication to who did it, either. When the only people who know about the gag order are the FBI and the subject... what more evidence do they need for who leaked it?
[ link to this | view in chronology ]
It does not take much knowledge of history to understand how a corrupt U.S. Government could use National Security Letters under the Patriot Act—As A Political or Economic Weapon.
Currently in the name of fighting terrorism, U.S. Government can use National Security Letters to search a Citizen’s private information and records without having to provide specific facts—the person’s information sought pertains to a foreign power or agent of a foreign power. Government can impose National Security Letters without probable cause on your employer, your business client(s) credit card providers, even your relationships. After you receive a National Security Letter, under current law you can’t tell anyone. National Security Letters if used by a tyrannical U.S. Government, could be very threatening to Americans when you consider methods used by other governments. For example in Nazi Germany, the Gestapo routinely targeted and damaged business people and companies that refused to support the Nazi Government by—interrogating their customers—about them. Not surprisingly targeted business people and companies found it difficult to make a living after their frightened customers and clients distanced themselves after Gestapo interrogation. Some German corporations with ties to the Reich government used the Gestapo to scare off their business rivals’ associates and customers—to take their business. A corrupt U.S. Government could as easily use National Security Letters in the same manner and to intimidate Americans exercising First Amendment Rights.
Congress needs to pass legislation that prevents Government using National Security Letters to investigate Americans without first demonstrating a clear standard of probable cause.
[ link to this | view in chronology ]