Gag Rules and Information Flows: Or, How to Do Secret Surveillance in an Open Society Peter P. Swire Ohio State University Modest Proposals Conference February 24, 2005

The Puzzle Our Open Society Our Open Society First Amendment – speech by individuals First Amendment – speech by individuals Checks and Balances – FOIA and need for transparency & accountability in government Checks and Balances – FOIA and need for transparency & accountability in government Surveillance and Spying Surveillance and Spying Law enforcement and intelligence learn more when the target doesnt know of the surveillance Law enforcement and intelligence learn more when the target doesnt know of the surveillance How to do surveillance in an open society? How to do surveillance in an open society? What flows of information are good here? What flows of information are good here?

Overview of Talk FISA and records searches under Section 215 FISA and records searches under Section 215 Gag rule under Sec. 215 Gag rule under Sec. 215 It is overbroad and sunsets this year It is overbroad and sunsets this year Modest proposals for meeting the goals of open society & of surveillance Modest proposals for meeting the goals of open society & of surveillance

Background on FISA Foreign Intelligence Surveillance Act of 1978 Foreign Intelligence Surveillance Act of 1978 Wiretaps authorized against agents of foreign powers Wiretaps authorized against agents of foreign powers Think Soviet spy Think Soviet spy Terrorists also included in Act since 1978 Terrorists also included in Act since 1978 No probable cause of a crime No probable cause of a crime Never give notice the wiretap occurred Never give notice the wiretap occurred

Section 215 and FISA for Records USA-PATRIOT Act, Sec. 215 USA-PATRIOT Act, Sec. 215 Previously, FISA searches of records only for limited, travel records Previously, FISA searches of records only for limited, travel records Sec. 215 famous for giving new search powers to see library records Sec. 215 famous for giving new search powers to see library records Text is actually much broader: any tangible things (including books, records, papers, documents, and other items) Text is actually much broader: any tangible things (including books, records, papers, documents, and other items)

Why Section 215 is Broad Scope of search: any tangible record Scope of search: any tangible record Not probable cause or specific & articulable facts Not probable cause or specific & articulable facts Now any authorized investigation involving anti-terrorism Now any authorized investigation involving anti-terrorism Not limited to the agent of a foreign power Not limited to the agent of a foreign power Entire database can be subject to the order Entire database can be subject to the order

The Gag Rule in Sec. 215 (d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section. (d) No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section. Even fact of search stays secret, including the number at AOL last year Even fact of search stays secret, including the number at AOL last year Where did this come from? Where did this come from?

The Gag Rule It came from wiretaps It came from wiretaps Thought experiment: should there be a gag rule on the phone company while the wiretap is on the mobster or terrorist? Thought experiment: should there be a gag rule on the phone company while the wiretap is on the mobster or terrorist? Answer: Yes. Answer: Yes.

A Faulty Syllogism (1) The gag rule is good for wiretaps. (1) The gag rule is good for wiretaps. (2) FISA is being expanded from wiretaps to records. (2) FISA is being expanded from wiretaps to records. (3) Therefore, the gag rule is good for records searches. (3) Therefore, the gag rule is good for records searches. Class – can you spot any flaws in this syllogism? Class – can you spot any flaws in this syllogism?

Wiretaps v. Records Wiretaps Wiretaps Limited duration of search Limited duration of search Entire point of police effort lost if have disclosure – no information produced if target learns of the search Entire point of police effort lost if have disclosure – no information produced if target learns of the search Records Records Search gathers the records of interest Search gathers the records of interest Generally, the information is safely in hands of the police once the search is made Generally, the information is safely in hands of the police once the search is made

Searches of Records & Rooms Is illegal to tip off the target that about to have a search Is illegal to tip off the target that about to have a search Aiding & abetting; conspiracy to a crime Aiding & abetting; conspiracy to a crime Material assistance to terrorism Material assistance to terrorism Is clearly legal (usually) to tell neighbors or the press that a search happened yesterday Is clearly legal (usually) to tell neighbors or the press that a search happened yesterday Especially the mere fact of a search (without name of target) Especially the mere fact of a search (without name of target) Free speech & a check on possible abuse Free speech & a check on possible abuse

Proposals & the Sunset Sec. 215 itself Sec. 215 itself Perhaps political support to limit library searches Perhaps political support to limit library searches Likely difficult to remove all authority for FISA records searches Likely difficult to remove all authority for FISA records searches The gag rule in Sec. 215 The gag rule in Sec. 215 Similar, recent gag rules for National Security Letters and for some Dept. Homeland Security information Similar, recent gag rules for National Security Letters and for some Dept. Homeland Security information Focus of the modest proposals Focus of the modest proposals

Version A Strike subsection (d) Strike subsection (d) No gag rule at all No gag rule at all No need for one, because have aiding & abetting and related statutes if actually assist the terrorist or criminal No need for one, because have aiding & abetting and related statutes if actually assist the terrorist or criminal This simple point is new to the debate This simple point is new to the debate I lean toward supporting this, subject to specific showings of a need for gag rule in records searches I lean toward supporting this, subject to specific showings of a need for gag rule in records searches

Version B Six month gag rule Six month gag rule Extendable by new court order Extendable by new court order Analogy to limited time for wiretaps Analogy to limited time for wiretaps A simple, bright-line rule for when disclosure can be made A simple, bright-line rule for when disclosure can be made Have long-run accountability if possibly excessive searches eventually become public Have long-run accountability if possibly excessive searches eventually become public

Version C No person shall disclose to any other person (other than those persons reasonably necessary to produce the tangible things under this section, including counsel to the subject of the request), the name of the person or persons in connection with whom tangible things were sought or obtained under this section. No person shall disclose to any other person (other than those persons reasonably necessary to produce the tangible things under this section, including counsel to the subject of the request), the name of the person or persons in connection with whom tangible things were sought or obtained under this section. The suspect should not be tipped off The suspect should not be tipped off The public should know how these secret records searches are proceeding The public should know how these secret records searches are proceeding

Version C (cont.) The person or organization to whom the order is presented is authorized to disclose to the public the fact that a request under this section has been made, unless the judge granting the order makes a specific finding that such disclosure would be harmful to the national security and that finding is contained in the order. The person or organization to whom the order is presented is authorized to disclose to the public the fact that a request under this section has been made, unless the judge granting the order makes a specific finding that such disclosure would be harmful to the national security and that finding is contained in the order. A presumption of disclosure, with burden on the government to have secrecy, such as for a small record-holder A presumption of disclosure, with burden on the government to have secrecy, such as for a small record-holder

Version D Provided that, disclosure may be made concerning an order under this section where the record holder in good faith believes that the disclosure would not reveal information detailed enough to provide material assistance to targets of the investigation. Provided that, disclosure may be made concerning an order under this section where the record holder in good faith believes that the disclosure would not reveal information detailed enough to provide material assistance to targets of the investigation. Likely the right substantive standard Likely the right substantive standard As counsel for the record holder, however, may seem risky to disclose because hard to know what will tip off the suspect As counsel for the record holder, however, may seem risky to disclose because hard to know what will tip off the suspect

Version E – A More General Solution to Gag Rules Notwithstanding any other provision of law, prohibitions on disclosure of the fact that a request for a record or tangible object has been made shall have no force of law unless the statutory authorization for that prohibition specifically references this section. Notwithstanding any other provision of law, prohibitions on disclosure of the fact that a request for a record or tangible object has been made shall have no force of law unless the statutory authorization for that prohibition specifically references this section. Makes the general point that gag rules are bad Makes the general point that gag rules are bad Eliminates the current trend to slip them into various bills without public discussion Eliminates the current trend to slip them into various bills without public discussion

Version E (cont.) Prohibitions on disclosure have the force of law where the order issued by the judge authorizes interception of oral, wire, or electronic communications, until such time as the interception of such communications is completed. Prohibitions on disclosure have the force of law where the order issued by the judge authorizes interception of oral, wire, or electronic communications, until such time as the interception of such communications is completed. Gag rules remain appropriate during the time of a wiretap Gag rules remain appropriate during the time of a wiretap

Other Changes to Gag Rules If keep any gag rule, first clarify that disclosure includes counsel to the subject of the request If keep any gag rule, first clarify that disclosure includes counsel to the subject of the request Next, make explicit that counsel can seek to narrow or modify an order, if it is overbroad or burdensome Next, make explicit that counsel can seek to narrow or modify an order, if it is overbroad or burdensome If keep a (modified) gag rule, consider notice to record holder about when disclosure is permitted If keep a (modified) gag rule, consider notice to record holder about when disclosure is permitted

Conclusion No built-in limits on the surveillance agencies desire for secrecy about surveillance No built-in limits on the surveillance agencies desire for secrecy about surveillance Secrecy might help catch the bad guys Secrecy might help catch the bad guys Secrecy reduces meddlesome oversight Secrecy reduces meddlesome oversight My research project about when secrecy actually helps security, but intel world remains cautious about disclosure My research project about when secrecy actually helps security, but intel world remains cautious about disclosure

Conclusion Up to all of us to preserve the Open Society Up to all of us to preserve the Open Society Democrats and Republicans both honor freedom and checks on government Democrats and Republicans both honor freedom and checks on government New Paul Rosenzweig book (Heritage Foundation) on Lessons from the Cold War New Paul Rosenzweig book (Heritage Foundation) on Lessons from the Cold War Free speech and accountability mean we should scrutinize the gag rules and make the needed legislative changes Free speech and accountability mean we should scrutinize the gag rules and make the needed legislative changes Proposals here to do just that Proposals here to do just that

Contact Information Peter Swire Peter Swire Phone: (240) Phone: (240) Web: Web: