‘Gagged’ by the Government December 26, 2014Posted by rogerhollander in Civil Liberties, Constitution, Criminal Justice, Surveillance State.
Tags: alfredo lopez, civil liberties, gag order, national security letter, police state, roger hollander
Roger’s note: Here is a phrase I find myself using with increasing frequency: “this is truly frightening.” Do you know what a National Security Letter is? Do you think that one in a hundred thousand Americans has any idea what a National Security Letter is, or that the notion even exists? It is a lock-you-up-and-throw-away-the-key kind of thing, the kind of thing Kafka and Orwell tried to warn us about. The government orders you to provide certain information. You will go to jail if you refuse to provide it. You are not allowed to tell anyone that you have been so ordered. You are not allowed to tell anyone that you have been ordered not to tell anyone. If you do, you will be financially ruined and thrown into jail. No appeal. No recourse. Add this to the loss of habeas corpus, indefinite detention, state sponsored and sanctioned systematic torture programs, and presidential kill lists. Does “truly frightening” really do the trick here anymore?
A Police State Story
For the past three months, I and other leaders of the organization May First/People Link have been under a federal subpoena to provide information we don’t have. During that time, we have also been forbidden by a federal court “gag order” to tell anyone about that subpoena, although we had already announced it and commented on it before the order was sent. Finally, we were forbidden from telling anyone about the gag order itself.
It all sounds comical but any laughter would end if we violated that “gag order,” because that would be a felony and we could face prison sentences and huge fines.
We were silenced by our own government in a case we had nothing to do with and over information we didn’t have…and we couldn’t tell anyone about any of it.
The court order has now expired as of December 18 and I am now free to talk about it.
It’s actually not easy to write about. Not because it was very painful — it really wasn’t. But it was so bizarre, illogical and foreign to my normal experience that it cut into the normal expectation of discourse and communications I, and people in this country, take for granted as a right. Not being able to talk about something and not being able to explain why was among the most surreal experiences I’ve had in nearly 50 years as an activist and, because of its implication, it was one of the most disturbing.
It’s also difficult because I have no complete political context for this. I know there are many activists who are under such gag orders but I don’t who they are. They are gagged and, while the order that restrained us came from a judge and had a three-month time limit, many of these orders are issued instead as a federal National Security Letter and they are open-ended. I know people who have been gagged for years and had to press hard to have the order lifted long after the relevant investigation was over.
I also know that about 300,000 such letters have been issued over the last ten years — over 140,000 between 2003 and 2005.
The numbers alone attest to the seriousness of this situation. So let me explain what happened to us.
Among other things, May First/People Link provides Internet hosting services to its members — like a web host. Most of our members are activists and activist organizations in the United States and Mexico but we have a few members in other countries who need the security of data and protection from government intrusion which we provide on principle.
We’ve been doing that for a decade and during that decade we have received many information requests, letters about investigations and other less official but just as daunting actions like threats from companies who believe their copyright has been violated in some satirical piece on them. We respond by resisting all these requests for as long as we can and usually the affected member tells us to comply. Since May First doesn’t keep much recorded information on members, there’s not much to turn over.
On September 5 this year, the Department of Justice (apparently cooperating with Greek law enforcement authorities) demanded account information about the Athens (Greece) Indymedia Center (IMC), one of our members. Although no government has confirmed this, we believe the target of the investigation was an activist organization wanted by Greek law enforcement that is believed to have used the Indymedia website at one point. There’s nothing unique or surprising about that — IndyMedia is an international organization dedicated to providing news about movements world-wide, news which is often written by those movements. So anyone who wants to post on an Indymedia Center website is freely allowed to do so.
In fact, the Athens IMC had very little information on the organization under investigation. It doesn’t maintain logs or records of visitors. It just had a couple of email addresses that the government already knew about. In other words, we didn’t have anything the government wanted and couldn’t turn over what we didn’t have even if we wanted to. Normally, things would have ended there.
But this request was different from others we’ve received because the government subpoena demanded information not just for the Athens IMC but for the entire server their site is on. And that serve, which belongs to us, hosts many other May First members.
This was particularly egregious for two reasons. First, those other MF/PL members had nothing to do with this investigation and seizing their information not only violated the privacy and data protection principles we live by but it also violated any concept of responsible investigation. The government wanted us to turn over information about members who didn’t even know anything about this case and who had no connection at all to Athens IMC (much less the target of the investigation).
Second, the Athens IMC itself wasn’t suspected of doing anything illegal, but the Greek government could easily use information concerning it for repressive purposes. We knew there was nothing connected to its investigation on that server so why were these people trying to get this information?
After consulting with the Athens IMC, we refused to release personally identifying information to the government. We then publicly announced the existence of the subpoena to our membership and posted that information on our website.
Two weeks later, we were served with the gag order forbidding us from talking about the subpoena and forbidding us from even acknowledging to anyone outside our Leadership Committee that the order existed. That included friends, family, our membership and even the Athens IMC. We were to act as if nothing had happened even though we had already announced that it had.
We were informed that any violation of this order could result in fines and imprisonment, which could have destroyed the organization. Our lawyers from the Electronic Frontier Foundation advised us to comply.
I hate bullies and my natural inclination when I confront one is to push back. That’s more or less what May First does in most of the legal cases we face. It wasn’t the threat of a prison sentence that concerned us but a misstep in this case could mean a huge fine that would shut us down, closing down the websites and email accounts of thousands of activists. That would be movement-crippling and so we decided to follow our lawyers’ advice and comply.
We heard nothing more from the government and haven’t heard anything since. And that’s the first absurdity in the whole tale.
You would think that not allowing a citizen to talk would be a pretty huge decision for the government in this country. But this was treated like a routine matter and that’s because it is routine. It has become one of the government’s favorite investigative tools and the specific kind of tool the government usually uses is a National Security Letter.
Essentially the NSL is a demand for certain information which always includes a gag order like the one we received (except ours came from the federal court itself). Under the Patriot Act, the FBI can issue such a letter (without a judge’s approval or a hearing) if the agent running an ongoing investigation believes the information being sought is relevant to the case. Most of these letters are about illegal clandestine activities or terrorism but that’s a pretty wide berth for any investigation. What’s more, the letters never tell you what the investigation is about. There is no judicial review of the request required although, after the reform of the Patriot Act in 2006, you can appeal the letter to a federal judge. But the record shows that such appeals are almost never successful.
So you have to give up the information on people who expect that you will protect their information, never tell these people or anyone else you’re doing it and never tell anybody that you can’t tell them.
This alone shows that, in the United States, we have no privacy and, since you can’t communicate with people about what you’re being forced to do, no real freedom of speech.
To illustrate how absurd things got: I was contacted by several journalists from Greece who were, naturally, interested in a story about the US government cooperating with their own government’s investigators.
One asked me, “Have you received this subpoena?” and I responded that we have issued a statement on it.
He then asked if there are new developments and I answered, “I am unable to further comment on this situation at this time.”
These Greek reporters are clever souls so this one asked me, “Are you under a gag order from your government?”
I repeated my answer about not being able to comment. (By now I was starting to feel like the British Prime Minister during Minister’s Questions in Parliament. “I refer the honorable gentleman to an answer I gave previously.”)
Then, in the kind of question I would ask several times a week when I was working for a daily newspaper, he asked “Can we assume that this would be your answer if you were under a government gag order?”
My non-answer answer: “You can only assume what I have stated in my previous answer.”
Any reporter with any experience would realize that I’m under a gag order at that point, so the whole thing was ridiculous, particularly because we had already published a statement about this before we were gagged.
But maybe this wasn’t about not publishing the information. Maybe this was about exercising repressive power over a citizen…testing how far they can go, testing how much we will accept.
Because our order was issued by a federal judge, it was reviewed and had an expiration date. But if it had been issued through an NSL, the gag would be virtually permanent. If an activist believes that a particular government investigation is invasive (which it often is), that activist can never speak about it, comment on it, publicly analyze it. It becomes cloaked in the virtual smoke of a room of repression and constitutional violation.
That room is furnished the other accoutrements of a rapidly degenerating police-state society: cops killing young men of color without any real legal repercussion; a prison system bloated with young people that substitutes for gainful employment; a war policy that provides the only job potential young people have…to kill and die; a shocking policy of data gathering that violates every premise of privacy and civil rights; a democracy that is broken and manipulated as a matter of course and a government that is brazenly dysfunctional.
In that context of a society that clearly cannot be reformed, this absurd drama that would make Samuel Beckett proud makes a whole lot of sense. It’s not about the information you can give the government, it’s about blocking the information you can give other people.
For most of my life, people in this country have pointed out to me that at least we should be pleased that we can protest and that we have freedom of speech, privacy and association. But we really don’t. At least a third of a million of us haven’t enjoyed that freedom for an indeterminate period and probably a large percentage of them still don’t. Any freedom we have is granted by a government which constantly demonstrates that it’s ready to withdraw that freedom if it deems that necessary.
For some reason, not being gagged doesn’t feel very “free”.
Alfredo Lopez writes about technology issues for This Can’t Be Happening!