In 2004, Nicholas Merrill, founder of internet service provider (ISP) Calyx Institute, was served a controversial national security letter (NSL) from the Federal Bureau of Investigation. Eleven years later, the NSL’s gag order- which prevented Merrill from discussing the letter he’d received- has been lifted by a federal judge in a historic decision which “marked the first time such a gag order has been fully lifted since the USA Patriot Act in 2001 expanded the FBI’s authority to unilaterally demand that certain businesses turn over records simply by writing a letter saying the information is needed for national security purposes,” according to the Intercept.
NSLs are a tool used by the government to force telecommunication companies to give customer information without the use of a warrant from a judge. While NSLs have been in use since at least the late 1970s, their use has exploded since the 9/11 attacks.
NSLs are generally issued by the FBI to gather information from companies when related to national security investigations. This information can include customer names, addresses, phone and internet records, and banking and credit statements.
According to the Electronic Frontier Foundation, at least 300,000 NSLs have been delivered over the last decade. The year 2004 saw over 56,000 NSLs issued. For comparison, in 2000 before the passage of the Patriot Act which relaxed standards to issue NSLs, there were about 8,500 NSLs sent.
The most contentious part of NSLs is the usage of gag orders. When a credit reporting agency, telecom company, bank or travel firm receive the letters requesting customer information, they are legally gagged and are prohibited from alerting anyone about the incident- not the customer, and not their families. The individual may seek help from a lawyer, but the lawyer then also becomes gagged.
Another alarming feature of NSLs are the fact that a judge is not needed to approve the letter or gag order.
Eventually the FBI would withdraw the NSL because Merrill refused to comply, but Merrill continued to fight, partnering with the American Civil Liberties Union to launch a lawsuit against the FBI in the case Doe v. Ashcroft. In 2010 Merrill was finally able to disclose his identity but the fight against the gag order continued.
On August 28, U.S. District Court Judge Victor Marrero ruled that there was no “good reason” to force Merrill to remain silent about the NSL. After eleven years, the gag order has been lifted and Merrill is almost free to speak about the experience. He remains under gag order for 90 more days as the Justice Department weighs an appeal.
“‘If Merrill were only allowed to disclose details about the request ‘in a world in which no threat of terrorism exists,’ or in the case that the FBI disclosed the records itself — two extremely unlikely possibilities — it would effectively prevent ‘accountability of the government to the people,’ the judge wrote.”
Judge Marrero also stated that the FBI’s position was “extreme and overly broad,” and reminded the government that “Courts cannot, consistent with the First Amendment, simply accept the Government’s assertions that disclosure would implicate and create a risk.”
In a press release from the Calyx Institute, Merrill writes, “Judge Marrero’s decision vindicates the public’s right to know how the FBI uses warrantless surveillance to peer into our digital lives. I hope today’s victory will finally allow Americans to engage in an informed debate about proper the scope of the government’s warrantless surveillance powers.”
Jonathan Manes, supervising attorney in the Media Freedom and Information Access Clinic, commented on the ruling, stating, “Today’s decision will finally allow Mr. Merrill to shed light on the scope of the FBI’s claimed authority under the NSL statute, and to explain how the FBI’s interpretation is deeply problematic and potentially unlawful.”
Truth In Media has previously written about other efforts to reign in the use of National Security Letters. In October 2014, the Electronic Frontier Foundation (EFF) asked an appeals court to uphold a ruling that found the NSL provision of the Patriot Act to be unconstitutional.
In 2013, the unnamed company took their NSL to court to debate its constitutionality. U.S. District Judge Susan Illston in San Francisco ruled that the NSLs violated the First Amendment by removing the recipient’s ability to speak about the letter. The EFF and the company itself face federal prison time if they choose to reveal the names of the defendants.
What are your thoughts on National Security Letters? Do you believe this ruling will slow down the surveillance state? Leave your comments below.