IAmA Director of an ISP who was the first person to ever challenge the constitutionality of the USA PATRIOT Act's "National Security Letter" provision. AMA.
I was concerned with the legitimacy of the National Security Letter (NSL) I received and I had concerns that the client was being targeted because of political speech. I believed the FBI was demanding personal, sensitive, and constitutionally-protected information about one of my company's clients. I have to be extremely careful about what I say when I speak on this topic due to the on-going gag. I am allowed to say that the NSL sought a client’s name, address, telephone number, length of service, and transactional records including “transaction/activity logs,” “email header information,” account number, billing, email addresses, and anything I “considered to be an electronic communication transactional record.”
I refused to comply with the demand for information. Instead, I called my lawyer and together, we paid a visit to one of the clients of my ISP - the NYCLU - New York Civil Liberties Union - affiliate of the ACLU. Subsequently, I decided to file a challenge to the constitutionality of NSLs. After a few bizarre and Kafkaesque discussions (Q: had I broken the gag order by telling my lawyer? A: according to a literal reading of the NSL, yes I broke it several times over telling my lawyer, the NYCLU lawyer, and the ACLU lawyers. Q: would a hood be put over my head and would I be dragged away for violating the gag by telling lawyers and filing a suit? A: nobody knew for sure - the original law was unclear as to the penalty) I became the plaintiff in a court case originally known as "Doe v. Ashcroft" which was filed in 2004. If you have been following the news recently you will see that 7 years later, the after-effects of the constitutional challenge are still being felt.
As the years passed and the person who held the office of Attorney General changed, the case was renamed from Doe v. Ashcroft to Doe v. Gonzales, and then to Doe v. Mukasey, and finally Doe v. Holder.
The constitutional challenge resulted in the NSL provision being repeatedly declared unconstitutional in the courts. ( As an aside, it was also ruled unconstitutional in another case in Oregon ) However due to procedural reasons/tactics ( e.g. the law being changed which sent the case back down to the lower court, the request for information being dropped - undercutting my right to challenge the law on 4th amendment grounds ) the case was prevented from ever reaching the Supreme Court and therefore the rulings were not binding on the FBI. However the law was amended to fix some of the violations. Also, we have learned a lot of information after the DoJ Inspector General performed several audits of the use of NSL's and found widespread abuse. For years, these developments were in the news and NSLs were debated in congress. I have strong views about the need for reform of the NSL statute and it is hard to accurately describe my frustration at being unable to participate in the public debate.
In 2007, on the campaign trail, then-candidate Obama said that during his Presidency there would be "no more National Security Letters to spy on citizens who are not suspected of a crime" because "that is not who we are, and it is not what is necessary to defeat the terrorists." Unfortunately so far that promise has not yet come true. In fact, their use has reached epidemic levels. To get a sense of how many of these letters have been used - during just a 3 year period between 2003 and 2006 the FBI put out nearly 1 NSL per 1000 Americans. I don't believe there can possibly be that many terrorism or espionage suspects in the country.
For the years I was completely gagged, I read about my case in the newspapers and on websites, I read people commenting about it but I couldn't say a thing. I heard my friends and particularly my colleagues discuss the case without knowing I was the plaintiff. I would have liked to have organized the ISP community to speak out against warrantless searches but I was unable to. Now I feel that I have 7 years of lost time to make up for.
As part of a settlement agreement, I became partially un-gagged in August 2010. After I was partially released from the gag order I have been speaking out at every opportunity, to let people know why this is so wrong. I have been profiled in the NY Times, The Washington Post, and in Wired magazine. I have appeared on National Public Radio and on the Democracy Now! radio show.
Sometimes when people ask what being partially un-gagged means, I explain it this way: If there were 100 things I couldn't say before, now there are 98 things I can't say. Anything that was ever redacted in the court documents is something I can't discuss under penalty of law, and there is the possibility of prosecution if I mess up any time I discuss the issue. However I feel that it is important enough to take that risk, because the very bedrock principles our country was founded upon are at stake. I think the FBI has abused its gag power to squelch debate on the issue. There are recipients of hundreds of thousands of NSLs out there - some of the recipients of those letters might be reading this right now - who cannot talk openly without fear of going to prison.
Internet users do not give up their privacy rights when they log on, and the FBI should not have the power to secretly demand that ISPs turn over constitutionally protected information about their clients without a court order. I hope my successful challenge to the FBI's NSL gag power will empower others who may have received NSLs to speak out.
I am now in the fund-raising stage of building a non-profit organization called The Calyx Institute that will offer ISP services and telco services (VOIP), perform legal advocacy and defense, and also produce educational materials - and whose missions are to promote best practices in the telecom industry with regards to privacy and to protect the sovereignty of digital communications. It is currently seeking a development director, by the way. However, I should stress that I am writing this as an individual, not in my capacity as Director of that organization. AMA. However I may not be able to answer all questions due to the gag order.
tl/dr : I sued the FBI over the unconstitutionality of national security letters and was gagged for over 6 years
edit1: fixed typo
edit2: I should have included this article about the secret evidence: FBI compounds mystery with secret justification of gag order
[ UPDATE ] I will be posting a follow-up post in the next few hours going into further detail about telecommunications, privacy, and the sovereignty of communications and describing what I think we need to do next to solve the crisis
[UPDATE 2 - Sunday ] I have posted a must-read follow up posting