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Because he is a psychiatrist, the author of Corpus Callosum has an interesting perspective on recent abuses of investigative powers:

Never take legal advice from someone who is not your lawyer. The only thing worse than taking legal advice from someone who is not your lawyer, is to take legal advice from somebody else’s lawyer.

With that disclaimer out of the way, I am going to tell you what I find particularly galling about the FBI “National Security Letter” scandal. Yeah, it shows that we can’t trust our own law enforcement agencies. But we knew that already. …

The National Security Letters allow the Executive Branch to circumvent oversight From the Judicial Branch. That is what most of the fuss is about. But there is more to it than that.

You see, the NSLs also deprive the recipient of the right to representation. As I understand it, if you get an NSL that demands information, you are not allowed to tell anyone about it. That means you cannot seek legal advice about the NSL, specifically, you cannot ask an expert if it is a legal order, in order to determine whether you really do need to comply. There is no recourse, no due process, no option. Either you comply in silence, or you put yourself in legal jeopardy.

When I first heard about them, I thought about what I would do if I ever got a NSL demanding that I turn over protected health information. Protected health information, by the way, is a special class of information defined by the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

The law provides stiff penalties, including prison terms, for some violations of patient privacy.

So this is not a trivial matter. The law does permit disclosure for “activities related to national defense and security,” but due to the nature of the NSL, the health care provider is not in a position to make an independent judgment about the relevance or legitimacy of the demand for information. …

Why do I find this issue to be troubling? It has to do with some of my own experiences. It has happened a couple of times that I have gotten subpoenas requesting protected health information regarding persons involved in nasty divorces. The opposing attorney sends the subpoena, hoping to find something damaging.

Now, a lot of health care professionals, upon receiving an official-looking subpoena, will just go along with it, and send the records. But I have learned that it is not always necessary or proper to do so. So now when I get one of those subpoenas, I first copy it and send it to my patient’s attorney. Let them fight it out. Usually the subpoena just goes away. These experiences show that official-looking documents are not always valid. They may carry threats, but the threats may be empty. It makes it hard to have confidence in the system.

Something that occurs to me: how do you know that a National Security Letter is the real thing?

I get emails purporting to be from banks or credit card companies asking me to log in to verify my login info. Those email messages are fraudulent, with links to sites created specifically to steal my login info. It’s called “phishing.” Now there is phone phishing, called “vishing”.

Isn’t the National Security Letter a perfect set-up for fraud? You can’t tell anyone, you can’t ask for advice, and you can’t say no.

It’s time — it’s past time — for the debate on this unrestrained government power.