Some More Thoughts on the NSL Gag Order Case and the First Amendment
posted by Neil Richards
There’s been a lively debate brewing in the comments section of my post on yesterday’s National Security Letters decision in Doe v. Gonzalez, in which a federal judge in the SDNY struck down a provision of the Patriot Act allowing the FBI to impose gag orders on recipients of NSLs. In light of this discussion, I wanted to say a few more words about how First Amendment values are threatened by NSLs.
NSLs raise First Amendment issues on at least two different levels. On the surface is the level adjudicated yesterday – the issue of when the FBI can determine that its requests for information about others can be made secret such that the recipient of the request cannot disclose this fact. As Jack Balkin argues (persuasively, in my view) the district court in Doe correctly struck down what was a licensing scheme that rested on the discretion of the government. This is a straightforward application of Freedman v. Maryland, 380 U.S. 51 (1965), which requires that due to the risks of censorship, government cannot require a license to speak except when it follows rigorous procedural safeguards. Freedman involved the licensing of allegedly obscene movies, whereas this case involves speech about the fact of government use of secret surveillance powers. There is, of course, a substantial (yet also vague) government interest in national security on the other side here, but the fact remains that whereas Freedman involved speech that the government had the power to regulate because it was potentially outside the protection of the First Amendment, the NSL gag order provisions involve core political speech. Our best guide for how that balance should be struck in the prior restraint context, the Pentagon Papers case, 403 U.S. 713 (1971), comes down squarely on the side of free speech. So at the level of First Amendment doctrine on the gag order provision, I think the decision in Doe is correct.
My post (and my research interest in this issue) is not about this surface threat to First Amendment values. It is instead about a deeper and ultimately more important level at which NSLs and other government tools of secret surveillance threaten First Amendment values. Even if we subject the NSL gag orders to meaningful judicial review as the Doe court insisted we do, the right to speak about the surveillance rests if at all on the third party who was served with the NSL. Unless that party is both able to speak up and actually does speak up, the real target of the surveillance is unaware that the government is scrutinizing them. So even after yesterday’s decision, NSLs still allow the government to engage in widespread secret surveillance. Yesterday’s decision did nothing to change the fact that NSLs can be used to scrutinize a person’s intellectual activities, including potentially the people they call, the web sites they visit, and even the terms they enter into a search engine. Because many of us use computers and the Internet to engage in the critical First Amendment activities of reading, thinking, and imagining, the fear that the government could be watching or could easily gain access to computerized records that document our engaging in these activities could easily chill our thoughts and incite them to the boring and the mainstream. In a society which values free thought and free speech as essential tools in the search for truth and self-governance, and which relies on novel, controversial or even deviant ideas as a source of progress, we should be (to paraphrase Holmes) eternally vigilant against government attempts to interfere with these fundamental activities. NSLs (among other modern phenomena) are a threat to the intellectual privacy that nurtures and protects these activities from surveillance and interference, allowing new ideas to develop sheltered from the normalizing gaze of others. Although we often think of the First Amendment and privacy as being in conflict, this is an area of law where First Amendment values and privacy values are not just harmonious, but essentially so.
Yesterday’s decision is a small victory for First Amendment law and a small victory for civil liberties. But the larger First Amendment issues that NSLs raise, which were dismissed by the Sixth Circuit earlier this summer as nonjusticiable, remain unresolved, with our ability to engage in autonomous thought on the Internet resting in the balance.
September 7, 2007 at 5:10 pm
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Responses (20)
Adam - September 7, 2007 at 8:24 pm
“Our best guide for how that balance should be struck in the prior restraint context, the Pentagon Papers case, 403 U.S. 713 (1971), comes down squarely on the side of free speech.”
That line actually encapsulates the problem with entrusting these issues to “neutral” judges in this context. Neil cites the Pentagon Papers case, applauding the balance it struck, without asking whether or not the Pentagon Papers arose in a context sufficiently similar to warrant reiteration of its rule today.
Judicial decisionmaking is primarily an effort to take decisions from entirely different contexts and apply them in new contexts. Which is perfectly fine most of the time. But on issues of national security? I’m not so sure. The Pentagon Papers were decided in an entirely different era — the national security context was primarily an overseas threat, and not the threat of domestic acts of aggression on our own shores.
If the Pentagon Papers case had been a post-9/11 case, would the national security/free speech balance have been struck the same way? I doubt it. And if it would be decided differently today, then I don’t see why it should be given much deference in the current context.
Of course, judges can overrule or distinguish old cases. But as Neil’s posts make clear, the stronger tendency will be for lawyers and judges to hold fast to the rules of older cases, applying them quickly without sufficient consideration for the different circumstances. Ideological devotion to abstract legal principles is prized over the practical considerations of the very real ramifications of hampering national-security efforts.
Elected officials and their appointees would be more responsive to the views of the electorate, and so I’d rather commit these life-and-death issues to them. And not to folks whose first reaction is to reflexively reach out to precedents that “come[] down squarely on the side of free speech.” (Or to reflexively “come down squarely on the side of national security,” for that matter.)
cboldt - September 8, 2007 at 5:21 pm
The 6th Circuit case, the one that reversed Anna Diggs Taylor, was on the Terrorist Surveillance Program, not on National Security Letters.
Neil Richards - September 8, 2007 at 6:06 pm
Right, but the First Amendment surveillance issues are the same: Is there any meaningful constraint on the ability of the government to access records pertaining to our communications or intellectual activity beyond the government’s determination that it is relevant to a national security investigation? I’m interested not in the specific government surveillance program (of which there are many) but the larger issues about surveillance and independence of mind. The Sixth Circuit found these issues nonjusticiable in the absence of actual proof of surveillance, which is a bit cheeky given that the TSP, like NSLs, is a secret surveillance program.
cboldt - September 8, 2007 at 7:11 pm
The 6th Circuit held the TSP plaintiffs lacked standing, because, due to state secrets being applied, they could not prove they had been under surveillance. This is technically different from being non-judiciable, but either way (lack of standing, or a case whose balance-of-powers nature precludes court involvement), the 6th Circuit said these plaintiffs couldn’t move their case forward.
Their 1st amendment claim was that their speech was chilled by the possibility of surveillance.
The NSL case is different in that the plaintiffs had been ordered to stay mum about a particular subject, that being their receipt of a surveillance order, to turn over material that described their customers’ activities. The reason the 1st amendment framing persists in the NSL case is that the 4th amendment issue -for this particular plaintiff- was resolved when the search order came before the court in a challenge to the propriety of the search order.
The 1st amendment does not note freedom from surveillance. It’s the 4th amendment that is, to me, most directly implicated when the government goes snooping everyone, looking for the bad guys.
That is, I think NSL’s implicate the 4th amendment, WAY more than they do the 1st amendment — but seeing as how the 4th amendment target is one person removed from the plaintiff/recipient of the NSL, and the 4th amendment issue was “resolved” in the NSL case, the final expression by Judge Marrero stands on 1st amendment grounds.
If put into effect, yesterdays decision by Judge Marrero makes NSLs themselves, at least by the process set out in the USA PATRIOT Act, a forbidden investigatory tool.
Don’t lose sight of the fact that Congress specified this “NSL” tool. In other words, by using NSLs, the investigator was following the law — unlike the TSP, where the snooper was probably operating outside of Congressionally-passed, statutory law.
Oirn Kerr - September 9, 2007 at 11:49 am
Neil,
Do you believe that the government should be allowed to conduct National Security investigations at all? If you do, what powers do you think the government should have? If you oppose secret investigations, do you think the government should have to notify the terrorist suspects and tell them that they are under surveillance? Or would that notice “easily chill [their] thoughts and incite them to the boring and the mainstream”? What about if the suspects are outside the U.S. and have no First Amendment rights?
nedu - September 9, 2007 at 1:40 pm
Orin,
I’d direct your attention to the Universal Declaration of Human Rights, adopted and proclaimed by United Nations General Assembly resolution 217 A (III) of 10 December 1948:
But those never were very elegant words, I guess. And perhaps the ideal they express seems especially repugnant at a time in our nation’s history when so-called mainstream political thought (at least inside the beltway) emphatically insists that superpowers just don’t need allies.
Orin Kerr - September 9, 2007 at 2:19 pm
nedu,
That is a wonderful sentiment that I agree with 100% . However, it tells me absolutely nothing about either the United States Constitution or about whether the government should be allowed to conduct national security investigations, which I had thought was the point of the thread.
cboldt - September 9, 2007 at 2:19 pm
– Do you believe that the government should be allowed to conduct National Security investigations at all? If you do, what powers do you think the government should have? If you oppose secret investigations, do you think the government should have to notify the terrorist suspects and tell them that they are under surveillance? –
The debate isn’t over surveillance, per se. Nice straw men though.
cboldt - September 9, 2007 at 2:21 pm
I’d add, “and not per se about ‘secret’ surveillance either.” See any number of Title III warrants that don’t mature into criminal charges.
Orin Kerr - September 9, 2007 at 2:21 pm
cbolt,
Your comment seems unrelated to mine, to the extent I can understand it, so I’m not sure how to respond.
cboldt - September 9, 2007 at 2:27 pm
The surveillance issue is “balance of powers” within the government (as against the individual).
To cast the issue as just plain “government” is a gross simplification. You don’t even differentiate between executive action, and executive coupled with independent oversight by a judge.
FISA-1978, as amended (Pre 2007) represents a particular balance — and even names terrorist actors. Perhaps some adjustments more narrowly tailored. Or, if there is a need for sweeping surveillance, just out and say it, without the BS about “protecting civil liberties.”
You’re a smart guy — why the jump to the extreme “do you think we should watch terrorists — or tell them they are being watched?” strawman?
Orin Kerr - September 9, 2007 at 2:44 pm
Cbolt,
I jumped to that because I read Neil’s post. As I read the post, it indicates that Neil sees the question of the proper degree of judicial review over NSLs as a very minor side issue, and that the real issue is whether the government should have such powers at all.
I gather you have the more traditional view that the issue is the matter of balance: the trick is just finding the right circumstances in which this authority should be permitted. I have the same basic approach; most people do. But as I read it, Neil’s post suggests something quite different. It suggest a deep discomfort with this type of authority in any circumstances. That’s why I was asking Neil to elaborate on his view. (You’ll notice that I had asked my question of Neil, not of you.)
Now, perhaps I misundertsood Neil, and if so I apologize to him. But I gather that is a clarification that Neil can make better than you can.
cboldt - September 9, 2007 at 3:02 pm
– I jumped to that because I read Neil’s post. –
Fair enough. I read it too, and have lots of problems with it, if it is read and construed literally. Even then, the “is there a meaningful constraint” question is better answered “see 4th amendment” than “should terrorists be notified.”
– You’ll notice that I had asked my question of Neil, not of you. –
I did notice that, But my gut reaction on your series of questions was that they were ridiculously fundamental with simple answers that everybody here would agree to. While they might advance a discussion somewhere, I figured discussion here was a bit further developed.
Heck, I nitpicked the difference between “nonjudiciable” and “standing,” as well as summarizing the differences, as I see them, between the two cases on 1st and 4th amendment grounds.
– I gather you have the more traditional view that the issue is the matter of balance: the trick is just finding the right circumstances in which this authority should be permitted. –
Heh. “Reasonable” is one of a few ultimate weasel words in the law. But it’s indispensible. Yes, I have a more “traditional” view, that whatever powers the government intends to use, or has the power to use against me personally, I should be able to become aware of — via transparency. And I also have a natural aversion to “trust without verification.” It has a place, but the stakes should be reasonably [there's that weasel word again] low.
I do appreciate your taking the time to respond to my “rude” intrusion.
Neil Richards - September 9, 2007 at 4:07 pm
Orin – thanks for your helpful question, which allows me to clarify my argument. I’m not unequivocally opposed to secret surveillance, which I see as a necessary evil. Surveillance of financial records, money flows, etc., under the NSL provisions in the FCRA and RFPA are not my concern. My concern is that subset of secret surveillance which involves the scrutiny of records related to intellectual activity – reading habits, lists of URLs, search engine logs, and private communications about ideas. I think that whatever the Fourth Amendment and federal statutory law requires for ordinary kinds of evidence, scrutiny of these “expressive records” (for lack of a better term) also raises important First Amendment issues which rarely get talked about. And I don’t think that the current regime of secret surveillance gives enough protection to these First Amendment interests (unsurprising, since we usually use Fourth Amendment law to think about them). So I’d like to see a few things done differently:
1. I’d like to see some kind of more neutral arbiter than an FBI agent approve NSL requests that seek expressive records in the categories I identified above. Current law currently forbids “pure” First Amendment surveillance of U.S. citizens in (I think) two of the four NSL provisions on the books, but the procedures aren’t sufficient to enforce this protection (especially given the revelations of the Inspector General’s report in March).
2. I’d also like the standard to be something more than relevance for intellectual activities. It might vary depending upon context, but probable cause would be a presumptive starting point for the debate.
3. In terms of notice, I think perpetual permanent no-notice for intellectual surveillance is a bad idea. I can imagine cases where an ex parte proceeding would make sense, but if an ISP or a search engine is disgorging expressive records, then some notice of this at least after the fact (particularly for people who haven’t done anything wrong) makes sense.
These are complicated issues, and as I wrote in my initial post, my intent is “not to minimize the government interest in deterring and preventing threats to our national security, but merely to note that when the government engages in intellectual surveillance, there is an equally important interest on the other side — our freedom of thought and our ability to generate new and potentially controversial ideas.” All of the records that can be sought through secret surveillance aren’t the same – some raise First Amendment issues and some don’t – and my intent is more modest than the abolition of secret national security surveillance. It’s simply to generate more discussion on the First Amendment implications of certain kinds of surveillance, and to think about how we can craft the law to protect both freedom of thought and legitimate anti-terror policing. There will be trade-offs here, and maybe this reflects my bias as a First Amendment scholar, but I think we’ve under-valued First Amendment values in the current legal regime (and current practice, to the extent we understand it) of secret surveillance.
Neil
Orin Kerr - September 9, 2007 at 4:39 pm
Neil,
Thanks for the clarification. I wonder though: From the standpoint of “First Amendment values,” isn’t secret surveillance the best kind of “intellectual surveillance”?
The chilling effect of surveillance occurs most severely when a person is told that they have in fact been watched; the possibility of being monitored is replaced with the very real image of it, and the knowledge of having been watched naturally discourages someone from engaging in “intellectual activities” again. However, if the government never gives notice of monitoring, most people won’t think about it and won’t be chilled and will be as expressive as they like.
We don’t normally think this way, because we are focused on Fourth Amendment “values.” In the 4th Am. context, notice is important. But if you want to put the emphasis on “First Amendment values,” then I would think you would want all surveillance to be secret surveillance and that you would not want the government to give notice when it collects information.
cboldt - September 9, 2007 at 6:09 pm
– Surveillance of financial records, money flows, etc., under the NSL provisions in the FCRA and RFPA are not my concern. My concern is that subset of secret surveillance which involves the scrutiny of records related to intellectual activity – reading habits, lists of URLs, search engine logs, and private communications about ideas. –
There are a few ways to explore privacy, and the reasonable invasion of it. I think that the framework you have in mind is premised on accepting the voluntary submission (for want of a better phrase) of certain kinds of information as a matter of routine (e.g., financial records), and withholding others. You expressly say you are unconcerned about routine submission of financial transactions.
But consider submitting your credit card or other spending habits in sufficient detail to determine which books and periodicals you buy. Such oversight might cause you to avoid the purchase of certain materials. That impinges on intellectual freedom.
At the other end, imagine a subject that law enforcement reasonably reaches suspicion, independently of intellectual activity. In that case, most people will agree that full-bore surveillance is A-okay.
The root issue, as I see it, is “how do we expect the snooper to develop suspicion?” In many cases, it’s rather impossible to divorce suspicion as arising from public statements, protected by the 1st amendment. Why are people suspicious of bin Laden? In large part, because of what he says.
So the tough cases are the quiet types. And there is no way to discern their hearts and willingness to perpetrate violence without snooping.
This has play for all premeditated (OKC, Columbine, 9/11) or ongoing (DC sniper) violence. There are some tough trades here, and they aren’t being discussed frankly.
cboldt - September 9, 2007 at 6:32 pm
– From the standpoint of “First Amendment values,” isn’t secret surveillance the best kind of “intellectual surveillance”? –
– The chilling effect of surveillance occurs most severely when a person is told that they have in fact been watched –
If I was personally an intellectual yet pacifist dissident, I’d be rather chilled by a rash of disappeared, harmed, and/or murdered dissidents. Maybe, being paranoid, especially so if I hadn’t been told I was in fact being watched.
– I would think you would want all surveillance to be secret surveillance and that you would not want the government to give notice when it collects information. –
There you go again, with the same bloody straw man.
cboldt - September 9, 2007 at 6:38 pm
Totally light-hearted kidding, BTW, on that last “strawman” comment. I know the context was limited to that where first amendment cannot possibly be chilled by secret surveillance.
Bruce Boyden - September 10, 2007 at 12:55 pm
Orin: “The chilling effect of surveillance occurs most severely when a person is told that they have in fact been watched;”
That’s true as far as it goes; but most people (hopefully, unless this is “Brazil”) are not going to be watched. For them, the question is going to be, what can they conclude from the fact that they have no notice that they are being watched? Ideally, from a freedom of expression and association standpoint, they would conclude that there is a very low probability anyone is monitoring their behavior. However, just a little bit of unconstrained secret surveillance — at least where the targets are secret, but not the fact of surveillance itself — can disrupt that assumption. I’d be willing to bet that the ratio of actual KGB surveillance to feared KGB surveillance in the Soviet Union was pretty low.
The problem I see with Neil’s suggestion is one of line-drawing. Financial records may show what books you purchased or films you rented. ISP logs will show not only what websites you visited, but who you e-mailed (as part of, let’s say, your conspiracy). As a result, I would think every NSL letter would have to get the heightened scrutiny you’re talking about. Which may be fine, I just think “regular NSL” is going to be nearly an empty set.
cboldt - September 12, 2007 at 9:13 am
H/T Howappealing, A good article by Michael C. Dorf at FindLaw,
A Federal District Judge Holds the Amended Patriot Act Unconstitutional probes the weakness in using a first amendment argument to protect fourth amendment “rights.”
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