In 2007, The Washington Post made an exception to its policy against anonymous op-eds and ran a piece by Nicholas Merrill, who at the time was legally barred from identifying himself as having been served with a National Security Letter under the Patriot Act.

Last year, after challenging the statute with the ACLU, Merrill was able to reveal his name. But he is still prohibited from giving information about the investigation that was launched back in 2004. Yesterday, on the 10th anniversary of the law, the Post printed a new op-ed by Merrill that describes his experience with the law that has fundamentally altered all Americans' relationship with the government:

In 2004, it wasn’t at all clear whether the FBI would charge me with a crime for telling the ACLU about the letter, or for telling the court clerk about it when I filed my lawsuit as “John Doe.” I was unable to tell my family, friends, colleagues or my company’s clients, and I had to lie about where I was going when I visited my attorneys. During that time my father was battling cancer and, in 2008, he succumbed to his illness. I was never able to tell him what I was going through.

For years, the government implausibly claimed that if I were able to identify myself as the plaintiff in the case, irreparable damage to national security would result. But I did not believe then, nor do I believe now, that the FBI’s gag order was motivated by legitimate national security concerns. It was motivated by a desire to insulate the FBI from public criticism and oversight…

I don’t believe that it’s right for Americans’ free speech rights to be bound by perpetual gag orders that can’t be meaningfully challenged in a court of law. The courts agreed, but the NSLs and the gag orders live on. Now the FBI is supposed to notify NSL recipients that they can challenge a gag order — but the government refuses to say how the court’s ruling has been put into practice, or how many gag orders have been issued, challenged or reversed. This information is especially important since internal Justice Department investigations have found widespread violations of NSL rules by the FBI.

During the recent debate to reauthorize sections of the Patriot Act, two members of the Senate Intelligence Committee — Mark Udall (D-Colo.) and Ron Wyden (D-Ore.) — warned that the government is interpreting the law to conduct surveillance that does not follow from a plain reading of the text. “When the American people find out how their government has secretly interpreted the Patriot Act, they will be stunned and they will be angry,” Wyden said. As someone who had to keep silent and live a lie for the better part of a decade, in the false name of “national security,” I know he’s right.

Merrill was also interviewed for an NPR report yesterday on how contrary to the law's original intent, the government is using the Patriot Act mainly for investigations that are not related to terrorism. You can listen here.

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"If you're not doing anything wrong, you have nothing to worry about."

Many Americans have said this, or heard it, when discussing the expanded surveillance capabilities the government has claimed since 9/11. But it turns out you should be concerned. Just ask peace activists in Pittsburgh, anti-death penalty activists in Maryland, Ron Paul supporters in Missouri, an anarchist in Texas, groups on both sides of the abortion debate in Wisconsin, Muslim-Americans and many others who pose no threat to their communities. Some of them were labeled as terrorists in state and federal databases or placed on terror watch-lists, impeding their travel, misleading investigators and putting these innocent Americans at risk.

"When the government institutions that are responsible for providing those checks fail to do so, the result is a national surveillance society in which Americans’ right to privacy is under unprecedented siege." Read the Report »

The Fourth Amendment requirement that you must be suspected of wrongdoing before the government searches your private records risks becoming a quaint notion. Congress weakened the laws designed to protect our privacy, while the executive branch secretly re-interprets or simply ignores the law with no consequence. While your privacy is being sacrificed, there's little evidence the new spying programs are catching terrorists.

The question should be, "If you're not doing anything wrong, why is the government snooping on you?"

After 9/11, Congress hastily passed the Patriot Act, the first of many changes to surveillance laws making it easier for the government to spy on you without having any evidence, or even suspicion you've done something wrong, often with no meaningful judicial oversight. These loosened surveillance laws provide access to a growing trove of electronic information about your everyday life: who you talk to or email, where you shop, your credit rating, the websites you visit, where you bank, what you read and more; without having to show a judge any evidence you've done anything wrong.

With a National Security Letter, the FBI can go directly to a bank or internet service provider and compel them to turn over records on people who are not even suspected of having terrorist ties. Audits of the FBI's use of this tool discovered that 40,000 to 50,000 of these letters are issued every year. If the government wants a to make a really deep grab for information, it can go to a secret intelligence court and obtain an order for "any tangible thing" or a yearlong directive for bulk collection of your communications coming into and out of United States.

The FBI has also claimed new powers to investigate you using "assessments," which allow unlimited physical surveillance, using informants, and conducting interviews of neighbors or co-workers, all without having any indication you are engaged in illegal activity or pose a national security threat. The FBI opened more than 82,000 of these assessments from March 2009 to March 2011, only 3,315 of which discovered any information to justify starting an investigation. But the FBI keeps all of the personal information gathered in the 79,000 cases that found no wrongdoing, essentially forever.

These are the programs we know about. Secret government surveillance programs, like the National Security Agency's illegal warrantless wiretapping program, rely on secret re-interpretations of the law to justify ignoring the law. Sen. Ron Wyden, a member of the Senate Intelligence Committee, believes most Americans would be shocked to know how broadly the government interprets the Patriot Act. He recently said there is a "gap between what the public thinks the law says and what the American government secretly thinks the law says."

There is little evidence these spying programs have thwarted attacks. Inspectors general of key security agencies who reviewed the NSA warrantless wiretapping program found no hard evidence the program made us safer, despite its unprecedented scope. Similarly, though the FBI made close to 150,000 National Security Letter requests from 2003 to 2005, the Department of Justice Inspector General documented only one conviction in a terrorism case using the data during that period, and found no instance in which they helped prevent an actual terrorist plot.

Investigating innocent people doesn't help find guilty people. Spying on innocents makes us less safe by diverting security resources from investigations with actual suspicion of wrongdoing. But rather than learn from these results, the government demands more authority. Last year, it asked to get sensitive records about people's internet use without warrants, and this year, it is proposing a broad new cyber-security scheme allowing communication providers to routinely turn over our private information to the Department of Homeland Security. With so many well-documented cases of abuse, it's long past time for Congress to narrow these surveillance authorities and hold the intelligence agencies publicly accountable.

On Thursday, September 15 at 4 p.m. EDT, we’ll be hosting a live chat onFacebook. We hope you’ll join us; send your questions to @ACLU with #ACLUchat and #911 hashtags, or leave them in the comments section below.

(Originally published by McClatchy News.)

Over the weekend, the Internet was buzzing with the revelation that the government had obtained a court order requiring Twitter to provide information about some of its subscribers who are associated with WikiLeaks. The court order was made public only after Twitter successfully took action to unseal it and notified its clients whose records were at stake.

As the New York Times' Noam Cohen points out, this isn't noteworthy because the request was unusual — in fact, these secret government requests are far more common than the few you've heard of. It's unusual because the request became public.

In 2004, for example, the ACLU filed a lawsuit challenging the FBI's authority to demand records through National Security Letters (NSLs) and to gag NSL recipients from discussing record demands. The suit — the first of its kind — was brought on behalf of a "John Doe" Internet Service Provider that had been served with an NSL and had been prohibited from disclosing — to anyone — that the FBI had demanded the records relating to his clients. Even though the government eventually dropped the request, John Doe remained gagged from telling anyone that he had even received it.

The challenge was highly successful – it resulted in numerous court rulings finding parts of the NSL gag statute unconstitutional. As a result of a settlement agreement, "John Doe," a.k.a. Nicholas Merrill, is finally able to publicly identify himself and to state that he did indeed receive the records requests from the government.

Merrill brought the first challenge to an NSL gag order, and a few more followed. But as far as we know there are no current pending challenges to NSLs, despite the fact that the FBI's general counsel says the program has "ticked up" in recent years.

Twitter, Nick Merrill and the other brave few who have stepped up to challenge the government's secret requests for their users' private records should be commended. And others should follow suit.

As the ACLU's Aden Fine said in our statement on Saturday:

Twitter should be commended for moving to unseal the court order, but we are very troubled that the order was filed under seal in the first place. Except in truly extraordinary circumstances, Internet users should receive notice, and an opportunity to go to court to defend their constitutional rights, before their rights are compromised.

We'll have more as this story develops.

Good news on national security legislation. I know! I can hardly believe it myself!

The USA Patriot Amendments Act was marked up this week in an epic House Judiciary Committee meeting that spanned two days. The bill, though a bit watered down, still managed to maintain some of its civil liberties protections including:

• A rewrite of the gag order that comes with national security letters (NSLs). That provision is consistent with a recent decision in a case challenging the gag order by yours truly, the ACLU.
• A higher and stricter standard on issuing NSLs
• Letting the never-used “lone wolf” provision expire
• Much needed fixes to the John Doe roving wiretap provision

There are now a total of seven bills in Congress addressing the Patriot Act since three of the Act’s provisions are set to expire on December 31st. The USA Patriot Amendments Act is the best of the bunch that Congress is actively considering.

We’ll be asking you for support on this bill, especially as it faces some stiff competition from a competing bill introduced by House Intelligence Committee Chairman Silvestre Reyes. That bill will likely be heading for its own markup in the next few weeks (though, that mark up will likely be closed to the public). For more great info on Patriot check out the Get FISA Right kids, Julian Sanchez at Cato and, of course, Marcy Wheeler over at Firedoglake.

The House Judiciary Committee also managed to mark up the State Secrets Protection Act this week and, thankfully, left the bill largely intact. This bill was introduced early in the year after the Obama administration followed the Bush administration’s lead on claiming state secrets in our lawsuit against Jeppesen DataPlan for their role in “extraordinary rendition.” The government — unfortunately both past and present administrations now — has attempted to block several important lawsuits with an overbroad and improper assertion of “state secrets.”

The ACLU considers the State Secrets Protection Act a must-pass bill that will narrow the scope of the state secrets privilege and could open the courthouse doors to people who have suffered real and legitimate harm by the government. The bill will likely see more movement in 2010. Expect to hear from us then.