Coyote Blog

Tim Lynch brings us an update on the Bill of Rights.  Good news:  The third is doing find.  The rest?  Not so much.

From the beginning, national security letters had to end badly.  One only has to understand incentives to know that things were going to go off the rails.  Specifically, national security letters are an easy way to for investigators to short-circuit a lot of procedural steps, including review and approval of warrants by judges, steps that have been put in place for a real Constitutional purpose.  Anyone who is at all familiar with the operation of any government bureaucracy had to know that their use would steadily grow well outside the narrow bounds of urgent national security issues.  Anytime government employees can grow their power without supervision or accountability, they will tend to do so.  What absolutely guaranteed that this would happen, and sooner rather than later, was the legal non-disclosure requirements around these letters that prevents anyone from discussing, investigation, or discovering their abuse and misuse.

The Washington Post carries a great anonymous editorial from one person served with such a letter:

Three years ago, I received a national security letter (NSL) in my
capacity as the president of a small Internet access and consulting
business. The letter ordered me to provide sensitive information about
one of my clients. There was no indication that a judge had reviewed or
approved the letter, and it turned out that none had. The letter came
with a gag provision that prohibited me from telling anyone, including
my client, that the FBI was seeking this information. Based on the
context of the demand -- a context that the FBI still won't let me
discuss publicly -- I suspected that the FBI was abusing its power and
that the letter sought information to which the FBI was not entitled....

Without the gag orders issued on recipients of the letters, it is
doubtful that the FBI would have been able to abuse the NSL power the
way that it did. Some recipients would have spoken out about perceived
abuses, and the FBI's actions would have been subject to some degree of
public scrutiny. To be sure, not all recipients would have spoken out;
the inspector general's report suggests that large telecom companies
have been all too willing to share sensitive data with the agency -- in
at least one case, a telecom company gave the FBI even more information
than it asked for. But some recipients would have called attention to
abuses, and some abuse would have been deterred.

I found it
particularly difficult to be silent about my concerns while Congress
was debating the reauthorization of the Patriot Act in 2005 and early
2006. If I hadn't been under a gag order, I would have contacted
members of Congress to discuss my experiences and to advocate changes
in the law.

Tim Lynch makes a point about the national security letters I found intriguing and that has not been discussed very often, that the letters represent effect conscription of ordinary citizens into an intelligence or even big brother role.  The author of the WaPo editorial makes the same point:

I resent being conscripted as a secret informer for the government and
being made to mislead those who are close to me, especially because I
have doubts about the legitimacy of the underlying investigation.