National Security Letters >> |
The following is the abridged legal statement of a "John Doe" President of an Internet Service Provider (ISP). Relying on its expanded powers under the Patriot Act, the FBI used a "national security letter" to demand that Doe turn over sensitive records about the company's clients. The ACLU is representing Doe in a legal challenge to the constitutionality of the national security letter power. The demand was never approved by any judge, and included a strict gag order that is still preventing Doe and the ACLU from disclosing Doe's identity and many other details about the case. The Orwellian gag order prevented Doe from speaking out in opposition to the Patriot Act during the debate in Congress.
Statement of the anonymous President of an Internet Service Provider who received a National Security Letter:
I, DELETED, am the President and sole employee of DELETED which is an Internet access and consulting business incorporated and located in DELETED. DELETED provides a variety of Internet–related services for its clients. We provide space on the Web where people can post their own sites and store electronic files. We also provide some clients with e-mail accounts and the ability to access the Internet. Some of those clients are individuals and political associations that engage in controversial political speech.
DELETED possesses a wide array of information about its clients. With respect to any particular client, we may possess the client's name, address and telephone number; other addresses associated with the account; e-mail addresses associated with the account; Internet Protocol (IP) addresses associated with the account; Uniform Resource Locator (URL) addresses assigned to the account; activity logs for the account; logs tracking visitors to the client's website; the content of a client's electronic communications; data files residing on DELETED server; the client's customer list; the client's bank account and credit card numbers; records relating to merchandise bought and sold; and the date the account was opened or closed. On or about DELETED, FBI agent DELETED telephoned me and informed me that the FBI would be serving DELETED with a National Security Letter (NSL). During that conversation, Agent DELETED did not provide me with any details about the contents of the letter.
As I had never heard of a National Security Letter and had never before been contacted by the FBI, I was extremely disconcerted by the phone call. In an attempt to find out more information about NSLs, I searched the Internet by using Google and other Internet search engines. I also visited various government websites. I was unable to find anything describing the rights and obligations of a person served with an NSL. I also asked some of my acquaintances with whom I communicate over the Internet whether they knew anything about an NSL. None of them did.
After receiving the letter, I immediately scanned it and learned that the FBI was searching for information about one of my clients, DELETED The letter stated that I was not allowed to tell anyone, including my client, that the FBI was seeking information through an NSL. The letter also stated that I was required to provide the FBI with a range of information about my client, including DELETED name and other identifying information.
As there was no information that a judge had reviewed or approved the NSL, I did not want to hand over any of the information sought by the government. Although I read the NSL carefully, I could not find any information stating that I could challenge the NSL. Furthermore, nothing in the letter said anything about the right to talk to a lawyer. It didn't seem right that the government could forbid me from talking to a lawyer. In light of the gag provision, however, I wasn't sure what I was allowed to do. I asked Agent DELETED whether I could consult a lawyer and my business partners about the NSL. Agent DELETED said that I could do so.
The NSL states that I am obligated to comply with the government's demand. I am opposed to doing so, however, because I think that the government DELETED and because protecting the confidentiality of my clients' information is important to me on DELETED professional level. Rather than immediately provide the requested information, I contacted attorneys with the ACLU to determine what, if any, options were available to me.
Until I filed this lawsuit, I was unsure whether I could disclose even the fact that the federal government has sought access to my client's records without mentioning either the FBI or the NSL power. The government has now prohibited the disclosure of my name and my company's name in connection with this case. They have provided no further clarification as to what I can and cannot say without violating the gag provision.
Because of the gag provision I have not disclosed information either about the NSL or about this lawsuit to my client, who is the subject of the NSL. This has been particularly difficult because, DELETED on a variety of issues. I did not want to cut off all communications and I also thought that doing so could raise suspicions and possibly lead the government to believe that I had violated the gag provision. The gag has put me in a very compromising situation, as I do not want to be dishonest in my communications DELETED but also do not want to violate the gag.
Were it not for the gag, I would definitely have informed my clients that the government had sought information from me and that I am challenging the constitutionality of the NSL provision in an effort to protect all of my clients' interests. I want them to know that I take my commitment to security and confidentiality very seriously.
Some of my clients have specifically asked me whether DELETED is the Internet Service Provider (ISP) challenging the constitutionality of this provision of the Patriot Act. Because of the gag and the government's insistence that my identity remain a secret, I have been uncertain whether I must lie to them or whether a non-committal answer will suffice. The fact that I cannot speak candidly with my clients about this important issue, which is facing the entire Internet community, undermines the business relationships that I have worked so hard to develop with my clients.
Were it not for the gag, I would have contacted other electronic communications service providers (ECSPs) to solicit their advise as to how DELETED should respond to the NSL. I have no doubt that other ISPs, such as America Online, must have received at least one of these NSLs. Because of the gag, however, I am not able to contact them to find out what they did when they were in my situation. As a result, I cannot work with other ISPs to develop any kind of joint strategy to challenge NSLs through litigation.
The gag provision has also made it difficult to maintain normal communications with business colleagues, friends and family members. I have to make up excuses about where I am going when I need to meet with y lawyers about this case. I have been on edge ever since the FBI contacted me. Because of the gag provision, however, I cannot talk to friends and family about the stress that I have experienced since receiving the NSL.
Because of the gag provision, I have not disclosed information about the NSL and this lawsuit to the press and the public. I believe that the government may be abusing its power by targeting people with politically unpopular views. I also think that I should have the right to challenge the government's demand for business' records. But I am afraid to talk about the NSL power in even generic terms out of fear that the government could accuse me of violating the gag provision. Furthermore, even though I have taken every precaution to comply with the gag, I am afraid that I may be prosecuted and even jailed if I inadvertently violate the gag provision.
I find it ironic that before I received the NSL, I freely engaged in political debate on the government's use of the Patriot Act. But now that I have received one of these letters and I know much more about the way the Patriot Act works, I am prevented from talking. My experience as a recipient of an NSL has made me feel even more strongly that the public should be able to monitor how the government is using these powers so that it can police against possible abuses.
For more information on National Security Letters go to www.aclu.org/nsl