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

Gag Rules and Information Flows:Gag Rules and Information Flows: Or, How to Do Secret Or, How to Do Secret

Surveillance in an Open SocietySurveillance in an Open Society Peter P. SwirePeter P. Swire

Ohio State UniversityOhio State UniversityModest Proposals ConferenceModest Proposals Conference

February 24, 2005February 24, 2005

The PuzzleThe Puzzle

Our Open SocietyOur Open Society First Amendment – speech by individualsFirst Amendment – speech by individuals Checks and Balances – FOIA and need for Checks and Balances – FOIA and need for

transparency & accountability in governmenttransparency & accountability in government Surveillance and SpyingSurveillance and Spying

Law enforcement and intelligence learn more Law enforcement and intelligence learn more when the target doesn’t know of the surveillancewhen the target doesn’t 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 TalkOverview of Talk

FISA and records searches under Section FISA and records searches under Section 215215

““Gag rule” under Sec. 215Gag rule” under Sec. 215 It is overbroad and sunsets this yearIt is overbroad and sunsets this year Modest proposals for meeting the goals of Modest proposals for meeting the goals of

open society & of surveillanceopen society & of surveillance

Background on FISABackground on FISA

Foreign Intelligence Surveillance Act of Foreign Intelligence Surveillance Act of 19781978

Wiretaps authorized against “agents of Wiretaps authorized against “agents of foreign powers”foreign powers” Think Soviet spyThink Soviet spy Terrorists also included in Act since 1978Terrorists also included in Act since 1978

No probable cause of a crimeNo probable cause of a crime Never give notice the wiretap occurredNever give notice the wiretap occurred

Section 215 and FISA for RecordsSection 215 and FISA for Records

USA-PATRIOT Act, Sec. 215USA-PATRIOT Act, Sec. 215 Previously, FISA searches of records only Previously, FISA searches of records only

for limited, travel recordsfor limited, travel records Sec. 215 famous for giving new search Sec. 215 famous for giving new search

powers to see library recordspowers to see library records Text is actually much broader: “any Text is actually much broader: “any

tangible things (including books, records, tangible things (including books, records, papers, documents, and other items)”papers, documents, and other items)”

Why Section 215 is BroadWhy Section 215 is Broad

Scope of search: “any tangible record”Scope of search: “any tangible record” Not probable cause or “specific & Not probable cause or “specific &

articulable facts”articulable facts” Now “any authorized investigation” involving Now “any authorized investigation” involving

anti-terrorism anti-terrorism Not limited to the “agent of a foreign Not limited to the “agent of a foreign

power”power” Entire database can be subject to the order Entire database can be subject to the order

The Gag Rule in Sec. 215The Gag Rule in Sec. 215

““(d) No person shall disclose to any other (d) No person shall disclose to any other person (other than those persons person (other than those persons necessary to produce the tangible things necessary to produce the tangible things under this section) that the Federal Bureau under this section) that the Federal Bureau of Investigation has sought or obtained of Investigation has sought or obtained tangible things under this section.”tangible things under this section.”

Even fact of search stays secret, including Even fact of search stays secret, including the number at AOL last yearthe number at AOL last year

Where did this come from?Where did this come from?

The Gag RuleThe Gag Rule

It came from wiretapsIt came from wiretaps Thought experiment: should there be a Thought experiment: should there be a

gag rule on the phone company while the gag rule on the phone company while the wiretap is on the mobster or terrorist?wiretap is on the mobster or terrorist? Answer: Yes.Answer: Yes.

A Faulty SyllogismA 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 (2) FISA is being expanded from wiretaps

to records.to records. (3) Therefore, the gag rule is good for (3) Therefore, the gag rule is good for

records searches.records searches. Class – can you spot any flaws in this Class – can you spot any flaws in this

syllogism?syllogism?

Wiretaps v. RecordsWiretaps v. Records

WiretapsWiretaps Limited duration of searchLimited duration of search Entire point of police effort lost if have Entire point of police effort lost if have

disclosure – no information produced if target disclosure – no information produced if target learns of the searchlearns of the search

RecordsRecords Search gathers the records of interestSearch gathers the records of interest Generally, the information is safely in hands Generally, the information is safely in hands

of the police once the search is made of the police once the search is made

Searches of Records & RoomsSearches of Records & Rooms

Is illegal to tip off the target that about to have a Is illegal to tip off the target that about to have a searchsearch Aiding & abetting; conspiracy to a crimeAiding & abetting; conspiracy to a crime ““Material assistance to terrorism”Material assistance to terrorism”

Is clearly legal (usually) to tell neighbors or the Is clearly legal (usually) to tell neighbors or the press that a search happened yesterdaypress that a search happened yesterday EspeciallyEspecially the mere fact of a search (without the mere fact of a search (without

name of target)name of target) Free speech & a check on possible abuse Free speech & a check on possible abuse

Proposals & the SunsetProposals & the Sunset

Sec. 215 itselfSec. 215 itself Perhaps political support to limit library Perhaps political support to limit library

searchessearches Likely difficult to remove all authority for FISA Likely difficult to remove all authority for FISA

records searchesrecords searches The gag rule in Sec. 215The gag rule in Sec. 215

Similar, recent gag rules for National Security Similar, recent gag rules for National Security Letters and for some Dept. Homeland Letters and for some Dept. Homeland Security informationSecurity information

Focus of the modest proposalsFocus of the modest proposals

Version AVersion A

Strike subsection (d)Strike subsection (d) No gag rule at allNo gag rule at all No need for one, because have aiding & No need for one, because have aiding &

abetting and related statutes if actually abetting and related statutes if actually assist the terrorist or criminalassist the terrorist or criminal

This simple point is new to the debateThis simple point is new to the debate I lean toward supporting this, subject to I lean toward supporting this, subject to

specific showings of a need for gag rule in specific showings of a need for gag rule in records searchesrecords searches

Version BVersion B

Six month gag ruleSix month gag rule Extendable by new court orderExtendable by new court order

Analogy to limited time for wiretapsAnalogy to limited time for wiretaps A simple, bright-line rule for when A simple, bright-line rule for when

disclosure can be madedisclosure can be made Have long-run accountability if possibly Have long-run accountability if possibly

excessive searches eventually become excessive searches eventually become publicpublic

Version CVersion C

“ “No person shall discloseNo person shall disclose to any other person to any other person (other than those persons reasonably necessary (other than those persons reasonably necessary to produce the tangible things under this section, to produce the tangible things under this section, including counsel to the subject of the request), including counsel to the subject of the request), the name of the personthe name of the person or persons in connection or persons in connection with whom tangible things were sought or with whom tangible things were sought or obtained under this section.”obtained under this section.”

The suspect should not be tipped offThe suspect should not be tipped off The public should know how these secret The public should know how these secret

records searches are proceedingrecords searches are proceeding

Version C (cont.)Version C (cont.)

““The person or organization to whom the order is The person or organization to whom the order is presented is authorized to disclose to the public presented is authorized to disclose to the public the fact that a request under this section has the fact that a request under this section has been made, been made, unless the judge granting the order unless the judge granting the order makes a specific finding that such disclosure makes a specific finding that such disclosure would be harmfulwould be harmful to the national security and to the national security and that finding is contained in the order.”that finding is contained in the order.”

A presumption of disclosure, with burden on the A presumption of disclosure, with burden on the government to have secrecy, such as for a small government to have secrecy, such as for a small record-holderrecord-holder

Version DVersion D

““Provided that, disclosure may be made Provided that, disclosure may be made concerning an order under this section where concerning an order under this section where the record holder in good faith believes that the the record holder in good faith believes that the disclosure would not reveal information detailed disclosure would not reveal information detailed enough to provide material assistance to targets enough to provide material assistance to targets of the investigation.”of the investigation.”

Likely the right substantive standardLikely the right substantive standard As counsel for the record holder, however, may As counsel for the record holder, however, may

seem risky to disclose because hard to know seem risky to disclose because hard to know what will tip off the suspectwhat will tip off the suspect

Version E – A More General Version E – A More General Solution to Gag RulesSolution to Gag Rules

““Notwithstanding any other provision of law, Notwithstanding any other provision of law, prohibitions on disclosure of the fact that a prohibitions on disclosure of the fact that a request for a record or tangible object has been request for a record or tangible object has been made shall have no force of law unless the made shall have no force of law unless the statutory authorization for that prohibition statutory authorization for that prohibition specifically references this section.”specifically references this section.”

Makes the general point that gag rules are badMakes the general point that gag rules are bad Eliminates the current trend to slip them into Eliminates the current trend to slip them into

various bills without public discussionvarious bills without public discussion

Version E (cont.)Version E (cont.)

““Prohibitions on disclosure have the force of law Prohibitions on disclosure have the force of law where the order issued by the judge authorizes where the order issued by the judge authorizes interception of oral, wire, or electronic interception of oral, wire, or electronic communications, until such time as the communications, until such time as the interception of such communications is interception of such communications is completed.” completed.”

Gag rules remain appropriate during the time of Gag rules remain appropriate during the time of a wiretapa wiretap

Other Changes to Gag RulesOther Changes to Gag Rules

If keep any gag rule, first clarify that If keep any gag rule, first clarify that disclosure includes “counsel to the subject disclosure includes “counsel to the subject of the request”of the request”

Next, make explicit that counsel can seek Next, make explicit that counsel can seek to narrow or modify an order, if it is to narrow or modify an order, if it is overbroad or burdensomeoverbroad or burdensome

If keep a (modified) gag rule, consider If keep a (modified) gag rule, consider notice to record holder about when notice to record holder about when disclosure is permitteddisclosure is permitted

ConclusionConclusion

No built-in limits on the surveillance No built-in limits on the surveillance agencies’ desire for secrecy about agencies’ desire for secrecy about surveillancesurveillance Secrecy might help catch the bad guysSecrecy might help catch the bad guys Secrecy reduces meddlesome oversightSecrecy reduces meddlesome oversight My research project about when secrecy My research project about when secrecy

actually helps security, but intel world remains actually helps security, but intel world remains cautious about disclosurecautious about disclosure

ConclusionConclusion

Up to all of us to preserve the Open Up to all of us to preserve the Open SocietySociety Democrats and Republicans both honor Democrats and Republicans both honor

freedom and checks on governmentfreedom and checks on government New Paul Rosenzweig book (Heritage New Paul Rosenzweig book (Heritage

Foundation) on Foundation) on Lessons from the Cold WarLessons from the Cold War Free speech and accountability mean we Free speech and accountability mean we

should scrutinize the gag rules and make the should scrutinize the gag rules and make the needed legislative changesneeded legislative changes

Proposals here to do just thatProposals here to do just that

Contact InformationContact Information

Peter SwirePeter Swire Phone: (240) 994-4142Phone: (240) 994-4142 Email: Email: [email protected]@peterswire.net Web: Web: www.peterswire.netwww.peterswire.net