Comments on: “John Doe” Speaks Out Against NSL Gag Orders

By: Tim Armstrong

Tim Armstrong — Thu, 06 Sep 2007 20:32:07 +0000

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…

By: William McGeveran

William McGeveran — Fri, 27 Apr 2007 01:51:35 +0000

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.

By: Guest 3L

Guest 3L — Thu, 26 Apr 2007 23:23:40 +0000

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most likely lawfully, pretty much completely refutes your assertions that “even now, with the request for information withdrawn, he is forbidden to speak.”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.

By: William McGeveran

William McGeveran — Fri, 23 Mar 2007 18:47:56 +0000

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.

By: Tim Armstrong

Tim Armstrong — Fri, 23 Mar 2007 17:16:06 +0000

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.