Gag Rules and Information Flows: Or, How to Do Secret Surveillance in an Open Society

1. 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

2. The Puzzle • Our Open Society • First Amendment – speech by individuals • Checks and Balances – FOIA and need for transparency & accountability in government • Surveillance and Spying • Law enforcement and intelligence learn more when the target doesn’t know of the surveillance • How to do surveillance in an open society? • What flows of information are good here?

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

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

5. Section 215 and FISA for Records • USA-PATRIOT Act, Sec. 215 • Previously, FISA searches of records only for limited, travel 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)”

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

7. 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.” • Even fact of search stays secret, including the number at AOL last year • Where did this come from?

8. The Gag Rule • 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? • Answer: Yes.

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

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

11. Searches of Records & Rooms • Is illegal to tip off the target that about to have a search • Aiding & abetting; conspiracy to a crime • “Material assistance to terrorism” • 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) • Free speech & a check on possible abuse

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

13. Version A • Strike subsection (d) • No gag rule at all • 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 • I lean toward supporting this, subject to specific showings of a need for gag rule in records searches

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

15. 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.” • The suspect should not be tipped off • The public should know how these secret records searches are proceeding

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

17. 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.” • 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

18. 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.” • Makes the general point that gag rules are bad • Eliminates the current trend to slip them into various bills without public discussion

19. 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.” • Gag rules remain appropriate during the time of a wiretap

20. Other Changes to Gag Rules • 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 • If keep a (modified) gag rule, consider notice to record holder about when disclosure is permitted

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

22. Conclusion • Up to all of us to preserve the Open Society • Democrats and Republicans both honor freedom and checks on government • 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 • Proposals here to do just that

23. Contact Information • Peter Swire • Phone: (240) 994-4142 • Email: peter@peterswire.net • Web: www.peterswire.net