[telecom] What It's Like to Get a National-Security Letter

What It's Like to Get a National-Security Letter

Posted by Maria Bustillos The New Yorker June 28, 2013

In the summer of 2011, while he was fighting an indictment for alleged computer crimes, Aaron Swartz, an information activist, read Kafka's "The Trial" and commented on it at his Web site.

A deep and magnificent work. I'd not really read much Kafka before and had grown up led to believe that it was a paranoid and hyperbolic work, dystopian fiction in the style of George Orwell. Yet I read it and found it was precisely accurate-every single detail perfectly mirrored my own experience. This isn't fiction, but documentary.

Swartz committed suicide a year and a half later. (Larissa MacFarquhar told the story of the end of his life in a piece for The New Yorker; Swartz was also involved in developing what became the magazine's Strongbox.) His words came back to me in force last week when I spoke with Brewster Kahle, the founder of the nonprofit Internet Archive, perhaps the greatest of our digital libraries, and of the Wayback Machine, which allows you to browse an archive of the Web that reaches back to 1996. He is one of very few people in the United States who can talk about receiving a national-security letter. These letters are one of the ways government agencies, in particular the F.B.I., can demand data from organizations in matters related to national security. They do not require prior approval from a judge, only the assertion that the information demanded is relevant to a national-security investigation. Recipients of a national-security letter typically are not allowed to disclose it.

Kahle's experience has new purchase in light of recent stories of secret courts and mass surveillance; the machinery of our government seems to have taken on an irrational life of its own. We live in a surreal world in which a "transparent" government insists on the need for secret courts; our President prosecutes whistle-blowers and maintains a secret "kill list"; and private information is collected in secret and stored indefinitely by intelligence agencies.

Google, which has recently challenged them in court, has been advocating for greater transparency about its receipt of the letters; it revealed that it had received between zero and nine hundred and ninety-nine national-security letters each year from 2009 to 2012.

Hundreds of thousands of national-security letters have been sent. But only the plaintiffs in the three successful challenges so far-Kahle; Nicholas Merrill, of Calyx Internet Access; and the Connecticut librarians George Christian, Barbara Bailey, Peter Chase, and Janet Nocek-are known to have had them rescinded, together with all or part of their related gag orders, according to Nate Cardozo, a staff attorney at the Electronic Frontier Foundation. In March of this year, as the result of a petition, brought by the E.F.F. on behalf of an unidentified telephone-service provider, the federal judge Susan Illston ruled that the gag-order provisions of national-security letters violate First Amendment rights, and ordered the government to stop issuing them. The order was stayed for long enough for the government to appeal to the Ninth Circuit Court.

Meanwhile, Kahle is one of a handful of people who can publicly discuss getting such a letter.

Here is our exchange.

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Monty Solomon
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