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
I would be happy to do it if I had the opportunity. I haven't turned down an opportunity to speak about the issue publicly yet.
This is what it is to be an American. Thank you for standing up and saying something, we need people like you.
How much do you estimate this has cost you in time, lost personal productivity and actual money?
Thanks, well that is a difficult question to answer. The time and productivity would be impossible to calculate. As you can imagine it was extremely disruptive to both my personal and professional life. However if it were possible to calculate it would probably add up to quite a large number. As far as actual money, I didn't have to spend any money on the legal case because the government had to pay my legal bills since it lost.
(edit) The real question, it seems to me is how much it would have cost me - ethically and in terms of my sense of self - if I hadn't done something.
How large were the legal bills? Were they large enough to scare individual citizens off from pursuing a similar path?
The legal bills were in the neighborhood of 1 million dollars and that was a very conservative tally.. though the attorneys settled for a much lesser amount so they could spend their time taking on new challenges rather than spending years in court fighting over the fees
First, kudos to your lawyers who took on your case knowing they weren't going to make money. That means they really wanted to do the right thing just like you did.
Second, I wonder about one of the legal questions. The government withdrew the letter/request in order to defeat your fourth amendment claim. I'm sure your lawyers responded by saying something like "given what my client does for a living, the nature of these letters, and the fact that he's already gotten one, he's probably going to get one in the future, so why not just settle the 4th amendment question now." Did they say that? And if so, how did the court/government lawyers respond?
The lawyers definitely wanted to do the right thing and they deserve huge kudos since they did most of the work.
About the legal questions. The fact is, the government withdrew the letter/request. It's my speculation that this was a tactical move on their part in order to remove my legal standing. Whether that was their intention or not, their move did remove my standing and these types of things in court are very formal and precise. ( The government also withdrew the request from the others who challenged the NSLs - the Connecticut Librarians and the Internet Archive ) You either have standing or you do not and you can't say "well, why not just settle this other issue". The government lawyers wouldn't let that happen and neither would the judge.
Did you suffer any repercussions for doing this?
thanks for your thanks
No, I didn't suffer any repercussions. No threats, no harassment, no IRS audits. I don't know why for sure, but I think maybe it was because I pursued the case through legal channels and I respected the rules.
But you broke the rules by talking to your lawyer, did you not?
Well, what I broke was the commandment in the NSL to not tell any person. But I didn't just go amok telling anyone, I only told my lawyer and then some other lawyers. The FBI claimed in court that they didn't intend for that prohibition on telling 'any person' to suggest that you couldn't talk to a lawyer and didn't pursue getting me in trouble for doing that.. Probably because they knew they would lose that battle since Americans always have the right to talk to an attorney.
However the panel of judges in the 2nd circuit court of appeals said that any reasonable person would have interpreted the NSL's wording as prohibiting telling a lawyer. I guess that means I am not reasonable :)
So they concluded that you shouldn't have talked to a lawyer? Or that this part of the law was ridiculous?
In essence, they concluded that I did have the right to talk to a lawyer and that the language in the NSL tried to tell me (incorrectly) that I did not have that right
This is how a police state really gets rolling.
Everybody should be in this fight.
What can we do?
Well here are a few things we can do
1) we can support organizations like ACLU and EFF, EPIC etc. 2) we can spread awareness of the problem and encourage people to exercise their right to petition the government 3) we can write to our congresspeople 4) If you have received an NSL you can resist it and or challenge its constitutionality
I'd like some proof that this is actually you. Everything you put up in the text is just articles about a guy and his ordeal, and all publicly available. Photo w/ drivers license or something?
Sure, I can do that. I won't post my driver's license but here is a picture of me taken just now which you can compare to the photos at the NY Times or the ACLU site
What would happen if you simply said, "This gag order is unconstitutional. Also, fuck you." and leaked everything to every media outlet that was interested?
I seriously cannot believe they have this power and it's currently considered legal.
Only authoritarian governments do this kind of shit, this is supposed to be at least a republic.
Well, for one thing, the law would not have been changed due to the lawsuit, so it would not have helped the underlying problem
When I filed suit it was unclear that you could talk to a lawyer or challenge the gag orders. Now the law itself has been amended to make it clear that you can talk to a lawyer and that you have the right to challenge the gags in court. So there is opportunity for others to resist, and others have.. such as the Connecticut Librarians who joined my suit about a year later, and the Internet Archive who filed a separate suit even later.
Also, presumably, I would have gone to jail, and that would not have been encouraging to others that we would like to resist..
The experience showed me an important lesson.. that unconstitutional laws can be passed by Congress and can remain in place, and as long as the government uses litigative judo to keep the cases out of the Supreme Court, it can go on for years or even decades.
With Obama's promise to end this program, one would think that at least ideologically the attorney general would be sympathetic to your cause. Why do you suspect they continue to defend this so vigorously? Are they trying to make it go to the supreme court or do they really believe that it is a good thing, now that they are in office?
One has to wonder why the government agreed to let me (partially) out of the gag now.. when the prior administration would not
Why do they defend it so vigorously? I think it's because it's easier for the FBI to not have to worry about the constitution
I can't really speculate as to what they believe. I would hope that some people in the administration agree that the NSLs are blatantly unconstitutional but I've never spoken to anyone there
Since the law changed, have you tried to fight the gag? Or can you not comment on it?
I have, and I lost when the government produced secret evidence that my lawyers were not allowed to see, and therefore could not challenge in any meaningful way
That was when I proposed the settlement so that I could actually do something in the public arena and so I could finally stop lying to my family
How can it be legal for a court case to be settled based on information unavailable to one side of the debate? That based on my laymen's knowledge of law would be a violation of some sort.
Exactly. It violates the principles of fair legal proceedings. My lawyers even fought to get security clearance so they could read the secret evidence but were refused, so the legal proceeding was inherently unfair, and in my opinion invalid. Unfortunately, my opinion is not legally binding and the court's decision is binding.
Bizarre, you have the right to face your accuser, secret evidence inherently and explicitly denies this right, to you a US citizen.
yes, sort of.. it denied me the right to challenge the evidence presented which was a violation of due process IMO
however I was the plaintiff and the government was the defendant, so I didn't need to defend myself
Wouldn't that fall into some sort of mistrial?
Evidence being admitted improperly, Misconduct by a party, juror, or an outside actor, if it prevents due process,
Or would that have been more bad than good?
are there any lawyers here ? I don't know. it wasn't a trial so perhaps that article doesn't apply
I have absolutely no idea how law at that level works. You can't appeal based on this whole "secret evidence thing" or is that loophole crap somehow built into law and just accepted?
We could have appealed, though it is unknown if we could have won on appeal. And at each step of the way I would decide what to do next and whether to continue. At that point I decided I thought I could do more good if I could at least tell my story and start my non-profit than if I continued to grind away in total obscurity.
This is from a great article on the secret evidence, by the way:
In a statement, the ACLU elaborated on the move: "The government did not even file a redacted version of its secret affidavit or even an unclassified summary of what the secret affidavit says. Basically, the government is asking us just to trust that the gag is justified." FBI compounds mystery with secret justification of gag order
Secret evidence that nobody is allowed to see? Holy shit, talk about a trump card. Can I pull that kind of crap?
"Your honor, in this box is evidence that proves without a doubt that baseactionbastard did not smoke a bunch of crack and take hostages, but you cant see it."
not exactly.. the judge saw the evidence and so did the lawyers for the government. only me and my lawyers were barred from seeing it
What level of clearance did the judge and gov lawyers have to see it? You might not know this, but the 'trust us' line is beyond creepy in the court of law.
that's a good point, but I don't know the answer
I have, and I lost when the government produced secret evidence that my lawyers were not allowed to see, and therefore could not challenge in any meaningful way
That's... odd. If you or your lawyers couldn't see the evidence, then obviously you couldn't leak it...
I can't read minds so I don't know what was in their heads but I don't think they had a fear of us leaking anything.
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.
This is pure speculation but I think they wanted the evidence to be secret so we couldn't challenge its legitimacy, and they would win and prevent me from talking about my knowledge of the NSL abuses.
Don't you have a video up on YouTube or something where you're giving a lecture on your experience? I watched one a few weeks ago, and your story sounds almost exactly the same.
Yes, I gave a talk at the 27C3 conference in Berlin just before New years
Do you get extra attention when you come back into the country?
nope, though I had a bit of trouble getting out of the country
Are you able to give details on that? Were you stopped at the airport, or did it come up beforehand?
The TSA would not clear me to get on the flight to go to 27C3.. I stood at the airline checkin counter for over an hour and a half as every other person on the flight passed through security, and finally I was standing there all alone. The ticket agent spent that time on the telephone with TSA clearing up the problem. He never did tell me exactly what the problem was. Finally they did let me on the plane.
I'd challenge the gag on First Amendment grounds. "Congress shall pass no law..." seems pretty straightforward to me.
that's what happened... and we won, multiple times
however when the law was amended to say that you can challenge the gag orders, and I went back to court in order to do so, the government justified keeping the (at that time 5 year old) gag order going by showing secret evidence to the judge that my lawyers were not allowed to see
How did this work legally? What sort of secret evidence do you think they showed the judge?
I have no idea what the secret evidence consisted of, and I cannot understand why the judge allowed secret evidence to be presented if both sides could not see it
Is there anything the government could have presented as secret evidence that would have made it acceptable to you for them to use that tactic? Philosophically speaking.
Not really and let me explain why
I think it is a violation of due process to have evidence that only one party in a suit can see, and the other side cannot see. That basic principle is one of the foundations of our legal system and goes back hundreds of years to English common law. No matter what the secret evidence said, it wouldn't change this fact
If they had real convincing evidence then why were they afraid to let my lawyers challenge it ? My lawyers offered to get security clearance to view it which would have bound them to secrecy. Why wouldn't they have just used it to get a real warrant from a judge in the first place ?
On top of all of that, the secret evidence was presented nearly 7 years after the gag began, so whatever information they had or that I had was nearly a decade old at that point. How could this be a 'ticking time bomb' scenario ?
Here you go, fine sir. Act Two is probably the root of your woes.
that looks interesting - thanks!
How involved were you in all of the legal battles? It seems implied you were also forbidden from seeing the evidence, but only mention the lawyers, were you even present in court or...
I was involved behind the scenes quite heavily but I could not go to court hearings for the most part.
I was only allowed to attend a couple of court sessions out of dozens.. and even then I was under instructions such as "do not wave at your lawyer, say hello to them or talk to anyone". The only reason I could even attend those was because it was known beforehand that it would be full of people.. entire law school classes were there and I blended into the crowd fairly well.
On what premise are you gagged for the other 98 things you can't talk about? I'm not asking for details but the subject matter of the details intrigue me.
Kudos to you for not succumbing to govt pressure to hand over information, you felt, that was deemed unconstitutional.
Essentially, the terms of the settlement agreement were that The government would permit me to admit that I was the plaintiff, that I could admit that I received an NSL and that the FBI sought information from me. In return, I would stop suing them over letting me out of the gag. Though I have the right to try again later to get out of the rest of the gag.
Specifically, the other 98 things* (actually it's thousands of things but I used 100 in my analogy to make it easier to understand) are anything that was redacted in the court documents. But when your court documents look like this it amounts to a lot of details.
How can they gag the entire cases? They're just claiming everything that's involved with warantless searching is classified as national security?
Legal noob here.
also, thank you.
Yes precisely - violating the rights of hundreds of thousands of people ( both people whose information has been unconstitutionally obtained, as well as the people who have lived their lives under the gag orders ) has been justified using national security.
Has there ever been a tally done of how much this defense would have cost if there were not kick-ass non-profit constitutional warriors like the NYCLU and the ACLU?
How great were they?
Were you a card carrier before this all went down?
I would estimate that the legal defense cost in excess of a million dollars. A lot of attorneys worked on it over the course of about 7 years. The civil liberties organizations are great, I could never have done this without them.
I have been a supporter for many years.. as I mentioned NYCLU was one of Calyx's clients, as I had sought them out to give them support.
Unfortunately due to the gag order I can't talk about the specific things they asked for other than what you can read in the redacted version of the NSL (linked at the top of the original post) because the government fought tooth & nail to prevent that information from becoming public. We had entire court hearings fighting over releasing this information but the government refused. The key phrase in the appendix of the NSL ( as far as I am concerned ) is "and anything you consider to be an electronic communications transactional record"
If you want to read the government's justification or any of the other legal documents they are all in this archive at the ACLU site
Could they ask google? Sure and I'm fairly certain the authorities have served NSLs on google.. probably many of them
You've fought the good fight for seven years. I'm positive that it has cost you plenty, despite ACLU freebies and even if you never have to write a check for it.
But, now you're seven years in and what few detractors there were are growing increasingly apathetic. Do you feel like you have effected any change? Do you feel like you will ever achieve success in this battle? Are you yet growing weary, as I am sure they expect you to? At what point is it no longer worth your effort?
Changing the law was good.. inspiring others to challenge the NSLs was good. The fact that people are talking about the issue is good.
My main regret is that the warrantless searches continue despite having been ruled to be unconstitutional in violation of the 4th amendment.
A famous man once said that no civil liberties battle ever stays won
Part of the reason that I did the settlement was because the scope of the legal battle kept getting more and more narrow. While at the beginning the precedent applied to everyone in America, by the end it had been narrowed to where we were simply arguing about my right to free speech, so for me it didn't seem worth it to continue that for now. I want to get back to dealing with issues that apply to everyone.
But you winning your case wouldn't have set up a precedent? (Sorry, legal stuff is hard to understand).
No problem - it is hard to understand, even for me
Basically, the judge in 2004 declared the NSLs to be unconstitutional. At first I though, hm, end of story, I win ! But the government appealed the decision so the judge's ruling was suspended pending the appeal. Then when we got to the appeals court, congress had changed the law, therefore the case was kicked back down to the lower level of court. This second time the judge again ruled the NSLs were still unconstitutional even in the amended version of the law. Then the case went back to the appeals court for a 2nd time, but by then the government had withdrawn the request for info, therefore we couldn't challenge it on the basis of the 4th amendment (unreasonable searches) but instead only on 1st amendment terms since the only thing I had standing to challenge at that point was the gag order. But from then on the case became about me and my gag order and was no longer about everyone in america and whether the law was constitutional.
What do you think about the gag orders themselves (what's your opinion on them)?
How frustrating/stressful/nerve wracking is it to have the gag hanging over your head?
Do you think that the power of the gag was abused in the sense that, you could challenge it? On the basis that they're stifling free speech?
Can you sue the FBI based on the gag itself - limiting your ability to spread info on the NSL topic?
What were the penalties of breaking it?
Good luck to you.
I think the gag orders are unconstitutional. The supreme court rejected prior restraint. I don't think that having the right to challenge them after the fact is sufficient - I think the responsibility should be on the government to justify the gag order before a judge, rather than it being the responsibility of the gagged person to challenge.
it is hard to explain how frustrating/stressful/nerve wracking it is. every time I talk about the topic I take a risk with my freedom, and I don't think there is any justification for me to be silenced 7 years later
I think the power of the gag was abused because the original NSL suggested that I could tell no person which would include a lawyer or a court clerk or a judge
maybe I could sue the FBI but I prefer to work on changing things for everyone
I believe the penalty is 5 years in prison, or maybe 10, not sure .. would have to double check the amended statute
Huh, this whole thing makes me wonder to what extent the constitutionality of gag orders themselves have been challenged in the courts, especially these long term ones.
(note, what I'm about to say next is NOT a hint/suggestion for you to do anything. You've already done way more than most of us in fighting this nastiness. It's more just "any lawyers in the house want to tell me if my reasoning is right?")
In principle, if you violated the gag orders (or even way back when, rather than taking the gov't to court yourself, simply blatantly said "nope, I'm violating your request, screw you"), then thus when put on trial you yourself excersized your right to a jury trial... wouldn't that effectively destroy the gov'ts ability to use secret evidence in the matter? Because then any evidence that is used would have to be seen by the jury, and you do (I think, IANAL) in a case where you're a criminal defendant unconditionally have a right to a jury trial, right?
ie, by deliberately arranging to become a criminal defendant in this sort of situation, would that allow one to be entirely protected from the insanity of secret evidence?
This is an interesting set of questions
However you have to remember what was going on during Bush's first term, after 9/11. The administration claimed it had the right to declare anyone it didn't like to be a terrorist and to deny them the right of habeus corpus which means you don't have the right to challenge your detention in court at all, no hearings, no lawyers, no trials. So that was a possibility that I wondered about.
Even if you did manage to make it to a criminal trial with a jury, (which I agree should always be your right if you are accused of a crime) what would that accomplish? You would have broken the law and barring any kind of jury nullification you would go to prison. So now a dozen jurors might know some of the information, and would probably end up gagged themselves. But how would that help the overall problem ?
As far as the secret evidence that was presented to justify my gag order, it was in a civil case not criminal.
Wow. I can't imagine that.
Do you think that they've got people following you around talking to others making sure that you're not talking about it?
How do they find out if you break your gag?
Presumably the government is at the very least scrutinizing any public statements I make
Do you provide yourself your own ISP services? If the FBI wanted to investigate you, they would have to send you an NSL and require you to not tell yourself about it. I will name this the Animal Farm Paradox. And because you couldn't not tell yourself, you would go straight to prison. Orwell and Heller are spinning.
EDIT: Do be careful what you say on Reddit. The FBI haunts the site as past experience shows. Reddit policy is to provide the FBI with ready access to our identities. For all we know Reddit sent them a 'thinking of you' complimentary subscription for Reddit Gold and invitation to participate in Secret Santa. Thanks for having the balls to stand up to the man. At least someone does.
I don't provide myself with my own ISP services at the moment. I use a big evil corporate ISP for the time being.
I am always careful what I say, not just on reddit
This reminds me of the case with Kevin Mitnick. While of-course he was doing illegal stuff...I often wonder on the constitutionality of him being gagged after being detained without being charged. As a result he cant even speak, teach or doing anything of any significance in the IT field... for LIFE....
Yes I can see certain parallels
Though Mitnick was convicted of a crime and so that could justify limiting his rights, in theory.. where as I did not do anything illegal, nor was I ever accused of having done so
I run a (very small) hosting company, and I'm currently in the process of drawing up those policies for myself... but if I could use policies drafted by someone else, /especially/ if those policies had a organization behind it and/or had been tested in court, I'd use 'em.
well, this is something that I think most ISPs would love to have. Speaking as a small hosting provider, a good, solid policy document would help a lot. Most of us don't even have a lawyer. I only have one working with me 'cause he's trading me for some free co-lo and SysAdmin services.
Oh yeah, my email is [email protected]
great! let's do this .. I have plenty of ideas to put in and I have access to top legal brains in the field.. I'd love to have The Calyx Institute put out a standard set of AUPs and privacy policies under creative commons or some other open license. Who else wants to help put this together? I will create a mailing list for the project.. I will be posting a follow-up post tomorrow about these ideas and how we should organize them
Alexis Ohanan was interested in this some time ago. we talked about it, he bought some domains (universalAUP.org) and I ended up flaking out, or at least not getting anything substantial after a year trying (Alexis transfered the .org to me after a year) Anyhow, my lawyer friend (He's not my lawyer; we have a highly informal relationship, but he seems interested in the project) and myself have been going back and forth on prgmr.com/~lsc/PrivacyPRGMRDraftv2.rtf and http://prgmr.com/~lsc/TermsofUsePrgmrDraft.txt (just to be /real/ clear, none of those are anything like final.)
great! I've already been in touch with Alexis.. The mailing list should be ready tomorrow
I am in the process of getting a block from ARIN also. just regained control of my original original ASN from 1995 :)
Fascinating how many disclaimers that initial letter had to try to avoid a lawsuit.
if you want to see something interesting, google the name of the person who signed the NSL and read his bio
All I found was a statement he prepared for the senate intelligence committee in 2002
Edit: Also this: http://www.historycommons.org/entity.jsp?entity=marion_(_spike_)_bowman (hyperlink won't work)
M.E. Bowman: Professorial Lecturer M. E. (Spike) Bowman currently serves in the Senior Executive Service as Senior Counsel (National Security Law), Federal Bureau of Investigation. He is a former intelligence officer and specialist in national security law with extensive experience in espionage and terrorism investigations. In addition to national security experience he is a retired U.S. Navy Captain who has served as Head of International Law at the Naval War College, as a diplomat at the U.S. Embassy in Rome, Italy and as Chief of Litigation for the U.S. Navy. In his current position he is responsible for legal issues arising from both traditional and economic espionage, international and domestic terrorism, international organized crime and threats to the information and other critical infrastructure of the United States. Mr. Bowman is a graduate of Willamette University (B.A.), the University of Wisconsin (M.A.), the University of Idaho (J.D., Cum Laude) and The George Washington University (LL.M., International and Comparative Law, With Highest Honors). source: gwu.edu
yeah it's almost as if they knew they were on extremely shaky legal ground from the start
Did the CLU's take your case pro bono, or are you funding this entire endeavor yourself?
Personal note: As a law student with an interest in tech/ internet/ online-rights law, I find what you're doing to be groundbreaking and extremely valuable for all Americans.
they did take the case pro bono, and the government had to pay the legal bills after they lost
I wish there would be more people who would find the intrusion of the government under the guise of the patriot act an infringement on all American's rights and civil liberties. Sadly, I have found that if the laws do not specifically effect them they do not care to defend others. The other rhetoric that I heard was that if you do not have anything to hide than these laws should not be a problem for you. Americans seem to not be able to see the forest for the trees.
Clearly, more people are affected by the PATRIOT ACT than are aware of it due to the gag orders. The gag orders squelch free and open debate of the issues
One thing I am curious about.. this posting as of this moment has 341 down votes (27%). Why are people down-voting and how come those people are not commenting ?
I am really confused on how gag orders don't conflict with the first amendment?
they do.. they were ruled to be unconstitutional
"Censorship And Secrecy May Potentially Be Turned On Ourselves As A Weapon Of Self-Destruction," Court Says
NEW YORK - Saying that "democracy abhors undue secrecy," a federal court today struck down an entire Patriot Act provision that gives the government unchecked authority to issue "National Security Letters" to obtain sensitive customer records from Internet Service Providers and other businesses without judicial oversight. The court also found a broad gag provision in the law to be an "unconstitutional prior restraint" on free speech.
FYI: I know you cited the statements by our Pres. on the campaign trail, the simple fact is our government situation has become a dichotomy.
Only by people standing up, as it appears you have, will it change. No, not EGYPT style anarchy, but a coordinated attack on the establishment (both left and right, not just give one side carte' blanch because of a few talking points)
I don't view this legal challenge as an attack on the establishment, but rather as a defense of American values in the Constitution
Are there any ways to discover if I am the subject of an NSL sent to someone else? Does asking this question assure that I soon will be?
no way that I know of.. unless someone breaks the gag and tells you, or unless someone at the FBI tips you off
Thanks for doing this and the AMA as well it's very interesting.
As someone who has worked for ISPs in the past and been in charge of what we kept for logs I'm curious what your professional recommendations would be now (while trying to preserve the rights of your clients). I'd imagine you can't tell us everything they were looking for but how about a quick overview of what you think ISPs should keep and for how long?
I think ISPs should keep whatever logs they need to in order to maintain the security and integrity of their systems, and also to meet the needs of their clients. But beyond that I don't think much else needs to be stored.
Some organizations such as the Independent Media Center do not log IPs that hit their websites at all
This is actually one of the projects that my organization will be taking on - instituting and promoting best practices for customer privacy in the telecommunications industry.
As far as you know, does the target of the original investigation have any idea of their connection with this case?
Do you still run an ISP? How is that going? I've heard most of the smaller ones tended to be bought-up/ consolidated into larger ones.
I can't really talk about the target of the investigation other than to say that I didn't inform the target. If I didn't have the gag order I would have a lot more to say on this subject.
The non-profit I am starting will be offering ISP services but on a non-profit and ideological basis
Does your gag order have a sunset? I would love to hear all the details about what information they expect you to give up, about who and why.
No, the gag orders that come with NSLs are life-long, perpetual, eternal
Due to my lawsuit people now have the legal right and ability to challenge them in court. But see the discussions elsewhere of how my gag was justified with secret evidence to understand why that may represent a false hope.
You should see if you can get an interview on The Daily Show. It would reach a large audience that has concerns about this issue.
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