
My National Security Letter Gag Order (2007) - boredguy8
http://www.washingtonpost.com/wp-dyn/content/article/2007/03/22/AR2007032201882.html
======
nbpoole
Since that editorial was published (back in 2007), the person who wrote it,
Nicholas Merrill, has been "partially un-gagged": he is now able to talk
publicly about portions of the case.

A followup Washington Post article: [http://www.washingtonpost.com/wp-
dyn/content/article/2010/08...](http://www.washingtonpost.com/wp-
dyn/content/article/2010/08/09/AR2010080906252.html)

He also did an IAmA post on reddit, which has a lot of information:
[http://www.reddit.com/r/IAmA/comments/fjfby/iama_director_of...](http://www.reddit.com/r/IAmA/comments/fjfby/iama_director_of_an_isp_who_was_the_first_person/)

(Since reddit is down right now, here's the cached Google version:
[http://webcache.googleusercontent.com/search?q=cache%3Ahttp%...](http://webcache.googleusercontent.com/search?q=cache%3Ahttp%3A%2F%2Fwww.reddit.com%2Fr%2FIAmA%2Fcomments%2Ffjfby%2Fiama_director_of_an_isp_who_was_the_first_person%2F#siteTable))

\---

Edit: Wanted to add a link to a later followup post he made on Reddit, talking
about his plans to start a "Non-profit ISP and Teleco":
[http://www.reddit.com/r/reddit.com/comments/fkndx/update_nat...](http://www.reddit.com/r/reddit.com/comments/fkndx/update_national_security_letter_challenge_why_we/)

(And the Google cached version:
[http://webcache.googleusercontent.com/search?q=cache%3Ahttp%...](http://webcache.googleusercontent.com/search?q=cache%3Ahttp%3A%2F%2Fwww.reddit.com%2Fr%2Freddit.com%2Fcomments%2Ffkndx%2Fupdate_national_security_letter_challenge_why_we%2F))

\---

Edit: And in case people are curious about the actual court case:
<http://en.wikipedia.org/wiki/Doe_v._Ashcroft>

~~~
boredguy8
Sorry for the old link. I usually check dates more carefully, but this was
sent to me by a newsie so I didn't pay as close attention.

Thanks for the additional info, though: having the follow-up links makes me
less sad I posted it.

------
ck2
Fun fact: under Obama the rate of "national security letters" has only
increased as well as the number of whistleblowers prosecuted.

Not saying he personally directed the FBI to increase, just saying it has and
nothing has stopped it.

But he has personally sought to expand NSL powers.

some background:

[http://www.eff.org/deeplinks/2009/10/obama-sides-
republicans...](http://www.eff.org/deeplinks/2009/10/obama-sides-republicans-
patriot-act-renewal-bill-p)

[http://www.nytimes.com/2010/06/12/us/politics/12leak.html?_r...](http://www.nytimes.com/2010/06/12/us/politics/12leak.html?_r=1&pagewanted=1&hp)

[http://www.salon.com/news/opinion/glenn_greenwald/2010/04/16...](http://www.salon.com/news/opinion/glenn_greenwald/2010/04/16/prosecutions)

<http://www.webwire.com/ViewPressRel.asp?aId=135889>

[http://www.nonprofitquarterly.org/index.php?option=com_conte...](http://www.nonprofitquarterly.org/index.php?option=com_content&view=article&id=11011&catid=155:nonprofit-
newswire&Itemid=986)

And Manning is in serious, serious trouble under Obama, I will be amazed if he
gets only life, because they purposely just added an "aiding the enemy" charge
which carries a death sentence:

[http://www.salon.com/news/wikileaks/?story=/opinion/greenwal...](http://www.salon.com/news/wikileaks/?story=/opinion/greenwald/2011/04/20/manning)

<http://www.cnn.com/2011/POLITICS/04/21/obama.interruption/>

~~~
enko
Not to sound disrespectful, but it's been obvious for some time that these
issues are systemic and have very little to do with who is democrat or
republican, labor or liberal, tory or whig.

~~~
anamax
> Not to sound disrespectful, but it's been obvious for some time that these
> issues are systemic and have very little to do with who is democrat or
> republican, labor or liberal, tory or whig.

While that may be true, you don't hear it nearly as much when a Repub or Tory
is in the executive office.

~~~
enko
>While that may be true, you don't hear it nearly as much when a Repub or Tory
is in the executive office.

Well, that's a textbook example of confirmation bias. There was an awful lot
of news about NSLs & friends when GW Bush was in office. He signed the damn
Patriot Act!

That said, this is all besides the point. In my opinion it is pretty much
irrelevant to focus on individual actors or even political parties when
thinking about the failings of government. We are not talking about a 10-man
sports team. We are talking about a system, a giant system of processes and
incentives, the outcome of which is our experience of government.

Favouring or disfavouring individuals is like a gambler constantly choosing
his "lucky" pokey machine. Or blaming/acclaiming a single soldier for the
outcome of a war. In fact, it is programming or process which determines both
these things. We have to start thinking about the larger picture.

~~~
anamax
> Well, that's a textbook example of confirmation bias. There was an awful lot
> of news about NSLs & friends when GW Bush was in office. He signed the damn
> Patriot Act!

I was unclear. I meant that you didn't hear the "it's how the system works"
defense/excuse offered above very often. Instead you heard "those evil
Repubs/Bush", and, as you point out, it got a lot of play.

Now that Obama is in office, these things don't get nearly as much play. What
little there is is a combination of "that evil Obama" and the above defense.

------
Cushman
Outrageous proposal time: NSL DDoS.

Let's say I own a business. Every week, I get two dozen letters purporting to
be from the FBI requesting information on my customers. Some of the requests
are clearly ridiculous; others might be genuine. If they are genuine, I'm
forbidden from discussing them over the phone; the requests aren't a matter of
public record, so I can't look them up; I don't have a secure fax, I run an
internet company. I could tell my lawyer about it, but he'd be subject to the
same restrictions as me.

My only options are either to submit an individual request for verification
for each letter by delivery service, or comply with every request I receive,
deluging the FBI with frivolous documents. Either way, thousands of companies
attempting to comply with dozens of such requests every week and the secret
police system would quickly grind to a halt.

To be followed shortly by a lengthy prison sentence — if they're lucky — for
anyone participating in the fabrication of government documents, of course.
Still, it's a fascinating prospect.

~~~
bobds
Your proposal has some interesting implications. There's a bunch of services
offering web-to-snail-mail facilities. Some of them even offer an API, so this
could in theory be automated.

~~~
bradleyland
Someone has to pay the bill, which means someone will go to jail. The only
reason online DDoS attacks are perpetrated successfully is because of the
relative ease of execution and the anonymity provided by an internet
connection. Still, even with the loosely connected identifying information
available about your internet connection, the FBI is issuing warrants [1] for
participants in recent DDoS attacks. A paper campaign's only chance for
success would be if individuals physically printed and mailed the letters
anonymously by posting them in a public mailbox. Investigators would have to
rely on traditional investigatory methods like finger prints and mysterious
printer identification dots [2], which work much slower.

1 - <http://www.google.com/search?q=fbi+ddos+anonymous+warrant>

2 - <http://boingboing.net/2008/10/23/howto-read-the-secre.html>

------
imrehg
As a non-lawyer, what would be the situation of this person is asked in the
court about some of their actions that is explained by the existence of the
gag order? Would "the truth, the whole truth and nothing but the truth"
override that gag order, or they had to somehow withhold that information?

~~~
mdaniel
I don't know if you were asking a rhetorical question, but my _opinion_ is
that if you were in court under those circumstances, it's likely you are going
to jail. If the FBI finds out you talked, you will be jailed [as I presume
that's the threat]; if the court finds out you lied, you will be jailed for
perjury. Only if you perjure yourself but don't get caught will you escape.

~~~
msg
You would take the Fifth Amendment and invoke your right against self
incrimination.

~~~
aplusbi
While I suppose in practice this is true, I don't think the 5th amendment
would technically apply. By mentioning the gag order you are not incriminating
yourself but rather committing a crime.

~~~
JoachimSchipper
The argument goes "whether or not you are under a gag order, you can plead the
fifth without incriminating yourself, so this is not actually a lose-lose
situation". In theory.

~~~
aplusbi
I understand your argument. My point was that revealing the gag order is _not_
self-incrimination - it is committing a crime.

Technically speaking, you are only allowed to refuse to answer a question if
you believe that answering will incriminate yourself.

------
Zak
I have to wonder whether a person is legally obligated under such an order to
_actively_ hide the existence of the NSL request. Does he really have to lie
to his clients, friends and family when asked directly about it, or would "I
can't answer that" satisfy the letter of the law while giving the asker a
strong clue as to the answer to their question?

~~~
eli
My understanding is that he was not allowed to communicate its existence to
anyone else through any means.

Saying "I can't answer that" is effectively disclosing that you are gagged,
which is not allowed.

It's a totally insane prospect.

~~~
koenigdavidmj
There was a backup site, rsync.net, which sent weekly announcements saying 'we
did not get a National Security Letter this week'.

~~~
tlrobinson
Here's their "warrant canary":
<http://www.rsync.net/resources/notices/canary.txt>

Assuming this even legal, I wonder if it would also be legal to have a warrant
canary for each user.

~~~
HedgeMage
I seem to recall that libraries did this a looong time ago and the courts
ruled in their favor, but I don't have a link handy and DDG/Google were no
help in that regard.

------
jdp23
Remember that the several clauses of PATRIOT Act will sunset unless they're
renewed by the end of May. Once Congress returns (the week of May 2) expect
floor fights in both the House and Senate.

It's a great opportunity to introduce reforms -- including NSL's and gag
orders. EFF has more at
[https://secure.eff.org/site/Advocacy?cmd=display&page=Us...](https://secure.eff.org/site/Advocacy?cmd=display&page=UserAction&id=468)

------
__david__
Having never seen the contents of a national security letter, I wonder what
the ramifications would be if you opened it and read it aloud for the first
time in front of a large (or small) group of people. Or perhaps have it read
aloud _to_ you in front of a large group of people. Certainly you can't be
expected to know that is going to gag you until you've read it once and by
that time it would be too late.

Is it worded such that the whole group of people would be gagged? There's got
to be some interesting way to circumvent it.

------
megamark16
I must be getting old. After reading this article I wrote an email to my
representative. I'm pretty sure that's a checkbox on the form I fill out when
I get a physical:

Have you ever sent a strongly worded letter to an elected official? []Yes []No

------
Volscio
Please date old articles in the subject line. i.e. "My National Security
Letter Gag Order (2007)"

------
zacharypinter
Here's a video of a talk Nicholas Merril gave about the gag order:

<http://www.youtube.com/watch?v=-6xsv4azzpc>

------
binarymax
A sign similar to this was proposed by librarians:

"The FBI has not served this library a national security letter. Please watch
for removal of this sign."

------
jeffreyg
(2007)

------
shareme
a comparison..a person entering the US military and getting a the lowest level
of clearance has less punishment if caught disclosing than these NCLs..

------
viggity
this is not hacker news.

~~~
ascendant
The US government trampling all over your rights, digital and RL is very much
a concern for everyone, hackers included.

~~~
wtn
While I think the government policy is questionable, I am also concerned by
the willingness of communications companies to respond to requests without
warrants.

~~~
omouse
Government and business are in bed together. This is how the capitalist system
works.

~~~
mc32
I'd place a good bet it's not endemic of capitalist economic systems. Put
another way, government and business (private or state or otherwise)
necessarily operate with one another (co-operate). So implying that it's a
trait solely of capitalism is not genuine.

~~~
billswift
Businesses don't have any choices - they cooperate or are shut down; they are
even more vulnerable to state coercion than individuals are, both legal and
sub-rosa actions.

~~~
Hoff
Or the businesses become rich enough or sufficiently well-connected, and they
might buy the legal solutions they need through campaign and PAC and party
contributions, through lobbying and other legal means, and through control of
mass communications and dissemination of information, and discussions recently
around the private enforcement of government regulations or the privatization
of government functions.

Now you could argue this is when a business transitions into a government-like
entity, but that's another thread.

