"Ashcroft, Snoops and Gag Orders:

The Secrets of
Surveillance"

Elaine Cassell, Counterpunch

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