“John Doe” Speaks Out Against NSL Gag Orders

The Washington Post has published a powerful op-ed piece by the anonymous recipient of one of the FBI’s national security letters, who is prohibited by law from disclosing even the fact that he received one. National security letters (or “NSLs”) are the demands for information, issued without any requirement of judicial approval, that were the focus of the recent scathing report released by DOJ’s inspector general earlier this month (as reported here). That report found that the FBI issued national security letters in great abundance (the FBI was so sloppy it is hard to know just how many) and contrary to the (minimal) limitations embodied in statute and internal DOJ policies. The Attorney General and FBI Director both admitted that the FBI had violated the law in its use of national security letters.

I found the op-ed very powerful because it moves beyond the typical dichotomous arguments between “fighting terrorism” and “protecting civil liberties” to examine the collateral impact of such pervasive secrecy on innocent bystanders such as the pseudonynomous author. The op-ed tells us that “John Doe” runs a small internet business and received a national security letter demanding information about a client. Rather than comply with what seemed like a fishy request, he courageously went to the ACLU. The secrecy rules mean he still can’t tell us why he was suspicious, although he does say that the FBI later dropped the request. But during the whole fight, he was forced to live a double life:

Under the threat of criminal prosecution, I must hide all aspects of my involvement in the case — including the mere fact that I received an NSL — from my colleagues, my family and my friends. When I meet with my attorneys I cannot tell my girlfriend where I am going or where I have been. I hide any papers related to the case in a place where she will not look. When clients and friends ask me whether I am the one challenging the constitutionality of the NSL statute, I have no choice but to look them in the eye and lie.

Even now, with the request for information withdrawn, he is forbidden to speak. That is a huge burden to place on someone. Forcing third parties into the role of involuntary government spies might be justified in highly exceptional circumstances, but the inspector general’s report demonstrates that their use has been anything but exceptional. As the better books by John le Carre demonstrate, there is a great personal toll to living a double life.

Of course, there are other systemic reasons why such secrecy is corrosive. My colleague Heidi Kitrosser has written about this issue in related circumstances, and John Doe points out that he could have warned Congress and the public about the likelihood of FBI abuses years ago if not for the gag order. If these practices had been reined in sooner, maybe our society would have created many fewer involuntary liars.

5 Responses to ““John Doe” Speaks Out Against NSL Gag Orders”

  1. A little bit of law on this — the statute governing the issuance of NSLs was originally struck down on both First and Fourth Amendment as-applied grounds (I blogged about it here at the time), but the court of appeals overturned that decision and reinstated the NSL program on the basis of certain additional procedural protections that were adopted in the PATRIOT Reauthorization Act.

  2. Tim: Indeed, and the PATRIOT Reauthorization was also the impetus for the IG report, which was commissioned in the new statute. NSLs themselves actually have been around for a long time, as you probably know, but before the original PATRIOT Act they used to (1) be limited to counterintelligence settings and (2) require a much stricter showing than mere relevance. Now, as the IG report shows, they have become much more commonplace.

  3. William, the fact that the author has published the op-ed, most likely lawfully, pretty much completely refutes your assertions that “even now, with the request for information withdrawn, he is forbidden to speak.” The only thing he can’t do is reveal his identity, the target, or any other details that would implicate the particular investigation. Yet, he can discuss his general opposition to NSLs, and even his own personal experience as an NSL recipient. He is hardly ‘forbidden to speak’ about NSLs or even about his own personal experience.

  4. Guest 3L:

    Well, first, I think the rest of that paragraph makes clear what I could have said better in that sentence: he is forbidden to speak specifically about his experience, including to his friends, family, and colleagues. The “burden” we place on him endures — even now he cannot turn to his girlfriend and say “you’ll never believe what I went through.”

    Second, he cannot disclose enough detail for us to judge whether his suspicions about the frivolity of this NSL are valid — making real oversight of NSLs impossible.

    Finally, writing the op-ed may well be illegal — not that he is likely to be prosecuted, but it’s still troubling.

    So I don’t think that statement refutes my assertions at all, even if I could have phrased it better.

  5. Apparently this story still has some legs, with today’s announcement that Judge Marrero has again struck down the (revised) PATRIOT Act provision governing NSLs. Stay tuned…