Censorship is an interesting topic. Done well, it can be a very good tool for government manipulations – it’s hard to object to something that you don’t know about, after all. It’s a blunt instrument, to be sure, but it can be an effective one. This is why governments have always tried to gain some types of censorship powers. Even in the US, a fairly censorship-lite country, various tools have been developed to allow government agencies to do things under the cover of night. I wanted to do an entry on one of them: tell me, have you ever heard of a National Security Letter?
Well, I guess you couldn’t tell us if you have. A National Security Letter is a letter that the FBI and other agencies can send to someone to demand records – almost any kind of records: bank statements, web history, telephone calls, etc… The manipulative aspect of a National Security Letter is that a) the agency doesn’t need a judge or a warrant to use it, and b) it comes with a lifetime gag order – the recipient is never allowed to reveal to anyone, even to an attorney, that he received it.
In other words, in theory, if you ever receive a National Security Letter, you have to obey it without any kind of recourse – no legal challenge, no going to the press, not even telling your wife about it.
The reason I wanted to use this tool as the subject of a full blog entry is because it has several interesting manipulative elements. Let’s look at a few of them:
First, how did such an egregious breach of due process ever get passed? Some agencies, such as the FBI, wanted something like the National Security Letter for a long time (not necessarily for evil purposes, by the way – conceptually, being able to ask for records without the record owner being able to alert others of the fact could be a very useful tool in crime fighting). But since Americans are generally wary of secret, unstoppable orders, this remained on the wish list of agencies for years as an interesting idea and no more. But, in 2001, in the wake of the 9/11 attacks, the Senate passed the Patriot Act, and the bit about National Security Letters was tucked into it (Cute quiz – everyone knows that John Ashcroft drafted much of the Act under Bush, but who wrote the predecessor bill to the Patriot Act, the 1995 act that basically set the ground rules for the government’s ability to modify core rules and laws in the fight against terrorism?)
The provision of the Act that allowed National Security Letters is relatively tiny, and it didn’t draw a lot of attention mostly because it was drowned in a lot of other issues, but also because the administration argued, quite reasonably, that it was a going to be a rarely-used tool – how many letters could the CIA send out, after all?
Well, as it turned out, 192,000+ letters, that’s how many. From the FBI alone. In just 3 years. What was supposed to be a sleepy, seldom-used power became almost a past-time for federal agents.
Obviously, not all of these letters could be terrorism-related. In fact, even though the language was carefully crafted to allow the letters to be used for almost any purpose, the FBI still managed to overstep its bounds: an internal audit of 10% of its NSL requests found more 1,000 violations of the law.
Beyond how it was passed and used, the very nature of a NSL is manipulative – the gag order makes it essentially impossible for a recipient to fight a NSL. When one recipient decided to fight a NSL, he had to get help from the ACLU, his own lawyer, go undercover for several years, and essentially hide his identity from the media – not an easy decision to make for anyone. Most of us would find it much easier to hand over the information requested, even if we knew that the requested had no right to it.
This is why the FBI and others used (and abused) the NSL tool – its very nature made it very difficult for recipients to resist. The alternative, by-the-book solution, getting a warrant, was more complex, and warrants can be fought legally, both before and after they are served. NSL, on the other hand, cannot be fought, which is why the FBI and others now use NSLs even when there are other, legal ways for them to obtain the same information.
If you read the WATOC post, you already know how agencies have traditionally defended the use of NSL – it was a necessary tool to defend the nation, it was a critical tool against terrorism, etc…. As more and more evidence of abuse has leaked out, however, there has been increasing calls for reform coming from Congress. In time, this particular manipulation tool may yet be scaled back.
National Security Letters are an extreme form of manipulation by our common definition: they are technically legal, they rely on the lack of disclosure, and they are designed to shape behavior to benefit the manipulator. But there is a fundamental difference this type of manipulation and corporate or media manipulations: most corporate and media manipulations rely, ultimately, on the audience’s desires and greed to work their magic. Government manipulations can do so too, of course, but more often than not they rely much more heavily on fear – in this case, for example, the fear of terrorism to get the law amended in the first place, or the fear of the recipient of the letter to dissuade him to fight its demands. This is a key difference between government manipulation and corporate manipulation, and it’s a theme that I’ll revisit in a couple of posts…