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My National Security Letter Gag Order (2007) (washingtonpost.com)
307 points by boredguy8 on Apr 21, 2011 | hide | past | web | favorite | 60 comments



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...

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...

(Since reddit is down right now, here's the cached Google version: http://webcache.googleusercontent.com/search?q=cache%3Ahttp%...)

---

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...

(And the Google cached version: http://webcache.googleusercontent.com/search?q=cache%3Ahttp%...)

---

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


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.


He also did a fairly decent talk at the most recent Chaos Conf, 23c3:

http://media.ccc.de/browse/congress/2010/27c3-4263-en-resist...


Old, but the aftermath is really relevant. I am really glad of this post, and the amazing comments it ensued.


He did also do an AMA on reddit.

Edit: I see you added the link. This article, for everyone else's info, was done Mar 23, 07 d:D


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.nytimes.com/2010/06/12/us/politics/12leak.html?_r...

http://www.salon.com/news/opinion/glenn_greenwald/2010/04/16...

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

http://www.nonprofitquarterly.org/index.php?option=com_conte...

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.cnn.com/2011/POLITICS/04/21/obama.interruption/


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.


Oh I agree. It comes down to law enforcement on every level always abusing every power they are ever given, far beyond the original purpose - doesn't matter if they are left or right thinking, federal, state or local. It's just always surprising to see the left do it because it seems counterintuitive.

I also think Senator Obama would be completely freaking out at President Obama.


> 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.


>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.


> 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.


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.


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.


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


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?


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.


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


The fifth amendment only applies in criminal cases. If you are in a civil case where the gag order comes up then you have no such protection.

"...nor shall be compelled in any criminal case to be a witness against himself..."


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.


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.


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.


Nah, 5th amendment protections...


Even from a lawyer, any answer to that would just be opinion, since it hasn't been tested in court yet. I would tend to think testimony in court would override a gag order, but US courts are notoriously unpredictable.


Testimony in court had BETTER be paramount. If the NSA's secret orders can force court proceedings to be conducted falsely, we are in big trouble.

Although, if I were in this situation, I would ask to speak with the judge privately.


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?


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.


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


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.


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.


IANAL but I'm pretty sure that if they did get a NSL, they would be legally obligated to continue to signal that they didn't, just as the author of the piece had to lie.


Yeah, cute idea, but I don't think it would actually work.

Failing to post the canary message would cause people to know that you received an NSL. This is the definition of "disclosure."

If you can find an instance of such a scheme being tested in court, I'd love to see it though.


Surely this is against the US first amendment?


Sadly, the only "living document" argument that makes sense anymore is that the constitution has died.


No, of course not. The first amendment guarantees freedom of expression, not freedom to disclose confidential information.


The first amendment guarantees free speech from being prosecuted criminally, not civilly. If your speech causes harm to come to someone or someone's property, then you can be prosecuted criminally just the same as you can be prosecuted criminally for using a rock to bring harm to someone. You have the right to throw rocks, but if you cause harm to come to someone then you can be held criminally (and civilly) responsible.

This is not a situation where someone's speech can be said definitely to cause harm to someone. Therefore the first amendment guarantees you will not be criminally prosecuted for it, though the government does not care.

Disclosing confidential information is not protected by the first amendment because it is a civil matter, not a criminal one. The federal government could (within the bounds of the constitution) bring a civil case against someone who violates the gag order, but it would be an uphill battle for them because the person violating the order did not sign a contract agreeing to keep quiet.


The courts seem to disagree with you on this point as it pertains to national security letters.

I haven't read any of the legal decisions; they're long, and I'm not a lawyer, but I see a big hole in the argument you're making. In every non-pathological case I can think of, a person receiving confidential information that they'll be prohibited from disclosing agrees to the confidentiality first. You can't send me an unsolicited letter containing information you want kept confidential and sue or jail me if I disclose that information, but the FBI can (pending the outcome of their appeal of the ruling that says they can't).


You have a point there, but "I won't answer that" doesn't actually communicate anything and seems like a viable alternative.


It does communicate something. If you weren't under a gag order, you'd likely answer "no", not "I won't answer that".


From the reddit AMA:

We had been meticulous in our care to not violate the gag in any way shape or form. We didn't want to jeopardize the case, and obviously didn't want to run into any legal trouble.

I read this as him saying he didn't want any issues raised that might distract from his lawsuit. That doesn't necessarily mean that the approach I proposed wouldn't be legal. A law that compels a person to lie is a bit more absurd than one that compels a person not to talk about something. It's pretty common to hear "I can neither confirm nor deny..." from government officials who work with secret stuff. I think chances are pretty good that would work for civilians under gag orders as well.


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...


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.


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


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


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

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


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."


(2007)


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..


this is not hacker news.


As noted by another post, the guy who received the NSL ran an ISP and the NSL was a request to turn over electronic records regarding the ISP. If that is of no concern to hackers, I don't know what is.


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


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


> I am also concerned by the willingness of communications companies to respond to requests without warrants.

You probably don't want to read this then: http://www.wired.com/threatlevel/2011/03/warrantless-eavesdr...

It’s easy to forget these days, but former President George W. Bush’s illegal warrantless surveillance program was never halted by Congress, nor by the Obama administration. It was merely legalized in a 2008 law called the FISA Amendments Act. That means the surveillance of Americans’ international phone calls and internet use — complete with secret rooms in AT&T data centers around the country — is likely still ongoing.


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


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.


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.


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.


As opposed to... what? Communist systems, where the government directly owns the businesses?

Capitalist systems are the ones with the LEAST amount of involvement between government and business. Yes, those relationships are often still too strong and even unethical, but at least they're not part of the government's basic mandate.


No! That is how a fascist system works.


Fascists were very good at making money and owning private property. I think you are confusing capitalism with democracy and the rule of law.


Yes... You're right, I did confuse the two.

And I didn't seem to imply anything about fascists not being good at making money and owning property.




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