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How the Patriot Act stripped me of my free-speech rights

By Nicholas Merrill,October 25, 2011

Sometime in 2012, I will begin the ninth year of my life under an FBI gag order, which began when I received what is known as a national security letter at the small Internet service provider I owned. On that day in 2004 (the exact date is redacted from court papers, so I can’t reveal it), an FBI agent came to my office and handed me a letter. It demanded that I turn over information about one of my clients and forbade me from telling “any person” that the government had approached me.

National security letters are issued by the FBI, not a judge, to obtain phone, computer, and banking information. Instead of complying, I spoke with a lawyer at the American Civil Liberties Union and filed a constitutional challenge against the NSL provision of the Patriot Act, which was signed into law 10 years ago Wednesday.

A decade later, much of the government’s surveillance policy remains shrouded in secrecy, making it impossible for the American public to engage in a meaningful debate on the effectiveness or wisdom of various practices. The government has used NSLs to collect private information on hundreds of thousands of people. I am the only person from the telecommunications industry who received one to ever challenge in court the legality of the warrantless NSL searches and the associated gag order and to be subsequently (partially) un-gagged.

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.

In 2007, this newspaper made an exception to its policy against anonymous op-eds and published a piece I wrote about my predicament. In August 2010, the government agreed to a settlement, and I was finally allowed to reveal my name to the public in connection with my case, but I am still prevented — under the threat of imprisonment — from discussing any fact that was redacted in the thousands of pages of court documents, including the target of the investigation or what information was sought.

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.

The writer is executive director of the Calyx Institute, a nonprofit organization that promotes “best practices” with regard to privacy and freedom of expression in the telecommunications industry.