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Ashcroft, Snoops and Gag Orders

The Secrets of Surveillance

by ELAINE CASSEL

Everyone knows by now (or should) that the Patriot Act allows the FBI to conduct surveillance on Internet and email usage. Using so-called National Security Letters (NSLs), the FBI directs Internet Service Providers (ISPs) to provide passwords and identifying information that will allow the government to target people who are plotting terrorism or who are otherwise potentially dangerous to national security. I am sure that many of you reading this (and I, likely) have the government in our computers.

The same mechanism of NSLs is used to obtain information from librarians, health care providers, and business records of individuals and entities. The party from whom the government demands information is forbidden from telling the client that the FBI is being provided information. And the target of the investigation won’t know about it until or if he or she is arrested for crime or detained without a charge (say, as a material witness).

Until now, we did not know much about how the government goes about this procedure. Now we do. Thanks to a suit filed by the American Civil Liberties Union (ACLU) in New York in behalf of an unnamed ISP. The government has tried mightily to keep the entire suit under seal, but the federal judge has allowed the ACLU to release some information about the case.

Following is a report on the case, with some interesting heretofore unknown details. Never has the ACLU needed your financial support more. Clearly, it is the only thing standing between us and our fascist government. Read the briefs and supporting documents in the case.

"The American Civil Liberties Union (ACLU) yesterday released more information about the heavily censored legal challenge it is bringing against the government’s use of a controversial provision of the USA PATRIOT Act that allows the FBI to obtain from businesses sensitive personal information about their clients. Among the documents unsealed today is a declaration by the ACLU’s anonymous client in the case, the president and sole employee of an unnamed Internet Service Provider (ISP), referred to only as "John Doe." John Doe is prohibited by law from revealing his identity to the public, even as he confronts the federal government over the very section of the Patriot Act that forces him to remain anonymous.

In his statement, Doe explains that his business provides access to the Internet, email accounts and space on the Web where people can post their own sites or store electronic files. He says some of his clients "are individuals and political associations that engage in controversial political speech," and that some "communicate anonymously or pseudonymously," which allows them "to discuss embarrassing, sensitive or controversial subjects without fear of retaliation or reprisal."

Doe and the ACLU are asking the court to deem unconstitutional the government’s use of National Security Letters (NSLs), which allow FBI agents to demand, with no judicial oversight, personal information about clients of Internet Service Providers.

"I believe that the government may be abusing its power by targeting people with unpopular views," Doe writes. "I am challenging the constitutionality of the NSL provision in an effort to protect all of my clients’ interests."

In a memorandum to the court, the ACLU wrote that the statute allowing the broad use of National Security Letters gives the FBI "unchecked authority" to require businesses to reveal "a broad array of sensitive information, including information about the First Amendment activities of ordinary Americans who are not suspected of any wrongdoing."

The memorandum continues: "The statute does not require the FBI to seek judicial authorization before demanding the disclosure of sensitive information, and it does not specify any means by which a person served with an NSL can challenge the NSLs validity before complying with it. In other words, the FBI issues NSLs without judicial oversight of any kind."

ACLU lawyers and their client are also disputing a section of the law that prohibits an entity that receives a National Security Letter request for information from telling anyone about the request. Ironically, this gag order is the same rule that prohibits the ACLU and John Doe from talking about many aspects of their case.

The ACLU challenge of the National Security Letters and the gag rule has been wrapped in secrecy since it was filed in early April this year. The civil liberties organization has been locked in constant disagreements with the government over how much can be revealed about the case. The group was not even allowed to announce the existence of the suit for over two weeks, and even after negotiating the right to publicize the case, has been subject to numerous restrictions on the kinds of information it can disclose.

Numerous words, sentences and entire sections of the documents related to the suit, which are posted on the group’s website, remain blacked out.

Assistant Attorney General for Legal Policy Daniel Bryant defended the gag order last week at a House Judiciary subcommittee hearing, saying it prevents people from interrupting terrorism investigations. But critics say the secrecy rule is designed to keep the public in the dark about the government’s invasion into people’s constitutionally protected privacy.

"It is particularly troubling," writes ACLU Executive Director Anthony Romero in a statement to the court, "that while the ACLU … [has] been gagged from discussing the NSL power, President Bush and representatives of the FBI and Justice Department are engaged in a public campaign in support of the Patriot Act. The gag provision silences those who are most likely to oppose the Patriot Act. [We] believe we have the right to inform the public of a great deal of the information the gag is suppressing."

In filings with the court, Both Romero and Doe described the self-censorship they had been forced to engage in when asked by others about the National Security Letters in general or the case in particular.

"The government has now prohibited the disclosure of my name and my company’s name in connection with the case," said Doe. "They have provided no further clarification about what I can and cannot say." He says that he has found it difficult to have normal conversations. "[I] used to discuss topics related to politics and current events, but now I feel wary when I communicate … I have steered clear of numerous topics of conversation as I am afraid…. The gag has put me in a very compromising situation, as I do not want to be dishonest in my communications [words blacked out] but also do not want to violate the gag."

Romero said that not only is the gag order affecting how he and other staff at the ACLU can talk about the case, but it is having an impact on the broader activities of the organization, which has been actively engaged in educating and organizing against the Patriot Act since the law’s inception in late 2001.

"[T]he scope of the gag in this case, and the refusal of the government to clarify what is prohibited, is intolerable," he writes. "The gag has severely disrupted our ordinary course of business… More importantly, the public and even members of Congress are denied non-sensitive information essential to public and legislative debate that is at the heart of democratic self-governance."

ELAINE CASSEL practices law in Virginia and the District of Columbia, teachers law and psychology, and follows the Bush regime’s dismantling of the Constitution at Civil Liberties Watch. Her book, The War on Civil Liberties: How Bush and Ashcroft Have Dismantled the Bill of Rights, will be published by Lawrence Hill this summer. She can be reached at: ecassel1@cox.net