Inspired by the recent debate in the US.
Can a federal (to keep it simple) police official-say the FBI in the US, question someone and compel that person to keep the fact of the questioning a secret? Can a federal investigator question me about something I saw and then compel me to keep the fact of the questioning a secret? Assume that the official convincingly tells me I am not the subject of the investigation. Nothing I tell him could incriminate me or get me in trouble. Assume that I have made no agreements to keep quiet-no security clearance, didn’t sign anything, didn’t take a job, there is nothing to bind me to silence except whatever power the investigator has. If this is the case, how long has this been in effect?
For non-US dopers, what is the answer in your country? Can the federal police compel your silence about the existence of an investigation.
On the surface it seems reasonable that the authorities can do this. But since I made no agreement to stay silent why can’t I use my right of free speech to get up on a soapbox in the local park? Or call my buddy to let him know what just happened?
I don’t believe that here in Canada a police official of any sort has the power to compel a questioned party to be silent about a matter. The police could certainly ask for the party’s cooperation in keeping silent, of course; but a court order would be required to really compel the party to silence. The police couldn’t just compel the party to silence because they are investigating something; and to the best of my knowledge, such a power is not granted to them through any statute. Note that I’m referring to police only; I’m unsure what powers may be granted by statute to the military or to intelligence services.
I thought there was something in your Patriot Act that would allow the FBI to obtain information from some one and at the same time prevent the disclosure of the fact that the information had even been asked for?
I think that was in relation to other government bodies. like they could obtain a list of the books you had checked out from the library, and the library board was prohibited from telling you they had done this. (Our local Library Board reacted to this by changing the computer system to delete the record permanently once the book had been checked back in.)
But I suppose that if you told about the questioning, they could later charge you with some catchall indictment, like ‘impeding a police investigation’ or some such. But they would have to prove that in court, and juries here are pretty firm on our First Amendment rights. But just charging you would be a hassle for you, and be expensive hiring a lawyer, etc., even if you won the case.
For a time post 9-11, the answer appears to have been yes, in the form of the infamous “National Security Letters” issued administratively (not through the courts) by the FBI and others. But it looks like the gag order provisions (pertinent to the OP) have been found unconstitutional.
The “patriot” act specifically authorizes investigators to get the records of your library borrowings and makes it a crime for the librarian to inform you of the fact.
In Canada, many trials are held secretly and the judge can rule you in contempt if you publicize it. Whether that also compels witnesses to refrain from discussing their own testimony is not clear. In a couple of well-publicized cases (the most notorious being that of Paul Bernardo convicted of torture and murder of women) the details were thought to be too horrifying, but the details were available all over the Internet for anyone who cared.
Once you are involved in a trial it seems things are much more strict. Certainly here, openly discussing a trial in a manner that could prejudice its outcome is simply contempt. But that isn’t the question. Here in Oz, and it seems in our sibling and parent countries, there is the equivalent of the Official Secrets Act (the UK term, here it is the Crimes Act) which defines things that a public servant or other employee of the crown may not divulge with respect to facts that could affect the security of the country. It does not cover ordinary citizens, except if they are party to publishing information gained through a violation of the act. And it does not cover ordinary criminal issues. Secrects are very carefully defined. A police officer does not have the power to define something as secrect.
A good example of a country where exactly what is asked is possible is Malaysia - where any public official can define something as an official secret. A fact that seems to be widely abused to allow officials to prevent any journalistic investigation into their own corruption.
Anti-terrorism laws seem to have a murky breadth. In general, if you learnt about the existence of a terrorism related investigation, you would be in fairly serious legal hot water if you were to go about discussing it, no matter how you learnt of it. I would assume that in the US the constitutional freedoms would help, but in the rest of the world these do not exist, and successful prosecution would be more assured. Here in Oz, a journalist that reported the existence of such an investigation would probably swiftly find themselves in trouble.
Just a slight correction … a few (not many) trials are subject to a publication ban. There is nothing secret about them; they remain open to the public, as all trials are, though the details cannot be reported in any form of media. A publication ban can be sought and granted if one side feels that making public what happens at the trial will prejudice the interests of its client, and it will be granted if the other side can show no good reason why it should not be granted.
Paul Bernardo’s trial was one of those rare ones where a publication ban was sought. Yes, the families of the murder victims were raising hell about horrifyng details, but as I recall things, Bernardo’s lawyer sought a publication ban because the case had been in the news for years through the investigation, the Homolka trial, and so on. It is arguable that thanks to the years of media coverage, Bernardo would not receive a fair trial. True, given all that had already been reported, a publication ban would be akin to locking the stable after the horse had bolted, but one was sought and granted anyway. It was interesting that the ban prevented publication in Canada, but it was made ineffective by American media, who were not prevented from publishing details in the US; as well as the Internet, which was gaining in popularity at the time (1994).
But trials are not secret, nor would I say that publication bans are frequent.
What if you figured out, on your own, the detailed workings of an operable nuclear weapon, and decided to put blueprints on the Internet? You did so entirely through self-study and were never subject to federal grant funding or anything like that. Does the gov’t have any legal recourse to prevent you from doing so?
So? The plans are already out there. Any semi-competent engineering student can design a nuke. The problems lie in getting the materials and doing the machining.
One of the most famous examples of an attempt to impose a “born secret” gag order on someone was United States v. The Progressive. It didn’t quite work.
But with the “Patriot” Act, the rules expanded significantly. In addition to Library personnel, the employees of banks, hospitals, ISP’s and phone company employees are barred from revealing snooping despite any issues of legality. Whether the employees are privately or publicly paid makes no difference.
Here in Canada ( and I assume also in the U.S. ), the names of young offenders cannot be published by the media, does that ban also applies to persons who have knowledge of the case, such as witnesses.
What about someone who post such information in a blog on the internet or some other venue not considered mainstream media?
Yes, but gag orders, as they’re called, are unconstitutional, strictly speaking.
They’re basically just strongly worded requests by judges for local/national media not to natter to much about the proceedings lest prejudice against one or more parties entails.
Young 'alleged; offenders who are juveniles are not publicly named. (Though often with the Internet, it’s not hard to figure out – the media often gives the parents names, for example.) Plus if the juvenile is certified to stand trial as an adult, then they will be named just like any adult defendant.
I don’t know of any legal prohibition on naming witnesses in a trial, except if a Judge orders it in a specific case. But normally, there isn’t much interest among the media in witnesses. Many are technical witnesses, and the media doesn’t even bother to use their names, even though they are known – the story will just say “a fingerprint expert testified …” or “the expert from the medical examiners’ office testified that…”.