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Former ISP Owner Wins Battle to Discuss FBI Spy Tool After Court Lifts Gag Order

For the first time, a federal court lifted a National Security Letter gag order. Although they’ve been ruled unconstitutional by federal courts multiple times in the past, this important ruling makes it possible for the owner of a now-defunct non-profit internet service provider to openly talk about the FBI’s request for data.

NSLs are issued by the FBI to telecommunication companies, financial institutions, credit companies, etc, without court approval. They are supposed to be used primarily in national security investigations.

Nicholas Merrill, the executive director of the Calyx Institute, owned and operated Calyx Internet Access. In 2004, the FBI served him with an NSL, which included a gag order preventing Merrill from exercising his First Amendment right to discuss how he had been the recipient of an NSL, who was the target of the investigation, and the contents of the NSL and an attachment listing the types of records the FBI sought.

Merrill fought the government for over a decade. In 2010, he won the right to reveal he had been served with an NSL by the FBI. On August 28, 2015, the U.S. District Court of the Southern District of New York lifted the gag order, approved the release of an uncensored version of a list of records the FBI sought, and issued an opinion rejecting every single one of the government’s bogus secrecy arguments [PDF].

“Today, my National Security Letter gag order is gone after over 11 years of litigation,” Merrill declared on Twitter. “I hope others who get NSLs find ways to challenge them.”

Merrill added, “I risked my freedom to speak out about my National Security Letter because I feel strongly about the need to protect privacy and free speech.” And, “The FBI shouldn’t be allowed to demand private customer records without any suspicion of wrongdoing or without any approval from a court.”

“By silencing recipients of NSLs, the FBI has been able to prevent ISPs, phone companies, and others from effectively collaborating for reform,” Merrill argued. He suggested his experience showed flaws in the process, which the USA Freedom Act codified earlier this year. The burden is inappropriately placed on the recipient of the NSL to litigate, and “only NSL recipients, who have extensive financial resources and the personal courage to stick their neck out” will challenge gag orders.

Here is the uncensored attachment, which Merrill forced the government to release. It shows the broad range of data the FBI sought from him:

“For more than a decade, the FBI has [demanded] extremely sensitive personal information about private citizens just by issuing letters to online companies like mine,” said Mr. Merrill. “The FBI has interpreted its NSL authority to encompass the websites we read, the web searches we conduct, the people we contact, and the places we go. This kind of data reveals the most intimate details of our lives, including our political activities, religious affiliations, private relationships, and even our private thoughts and beliefs.”

In the latest phase of his fight to restore his First Amendment rights, Merrill was represented by law students at Yale Law School’s Media Freedom and Information Access Clinic.

Lulu Pantin, a law student intern who represented Merrill, told Shadowproof the FBI believes it can force online companies to turn over records of “online purchases.”

“The FBI also claims authority to obtain cell-site location information with an NSL, which effectively turns a cell phone into a location tracking device,” Pantin added. “In court filings, the FBI said that at some point it stopped gathering location data as a matter of policy, but that it could secretly choose to resume the practice under existing authority.”

Pantin did not know why the government continued to silence Merrill but noted the government had search warrants and orders under the Stored Communications Act, which would have permitted the government to obtain any of the information it had sought. However, the government apparently favored the ability to demand information without any judicial oversight and went after it by issuing an NSL.

Noting that much of the information the government wanted to keep secret was actually public already, Judge Victor Marrero outlined in the court’s decision why it was so important to end the restraint on Merrill’s freedom of speech.

“A private citizen should be able to disclose information that has already been publicly disclosed by any government agency at least once the underlying investigation has concluded and there is no reason for the identities of the recipient and target to remain secret,” Marrero stated. “Otherwise, it would lead to the result that citizens who have not received such an NSL request can speak about information that is publicly known (and acknowledged by other agencies), but the very individuals who have received such NSL requests and are thus best suited to inform public discussion on the topic could not.”

This could lead to “unending secrecy of actions” taken by government officials, Marrero added.

The government attempted to keep details about how the FBI sought “records related to merchandise orders/shopping information for the last 180 days” secret. It attempted to keep how FBI sought a category of “subscriber and related subscriber information” secret. It aimed to prevent the the public from seeing how the FBI had requested records “related” or “associated” with the account, which was the subject of the investigation. But Marrero was able to find examples of how all this was already in public documents, including a Justice Department Office of Legal Education manual that had a sample almost identical to the list of materials the FBI sought from Merrill.

Marrero asked a critical question in his opinion, “If the court were to find instead that the government has met its burden of showing a good reason for nondisclosure here, could Merrill ever overcome such a showing?”

To which Marrero answered:

Under the government’s reasoning, the court sees only two such hypothetical circumstances in which Merrill could prevail: a world in which no threat of terrorism exists, or a world in which the FBI, acting on its own accord and its own time, decides to disclose the contents of the Attachment. Such a result implicates serious issues, both with respect to the First Amendment and accountability of the government to the people. As Judge Cardamone warned in his concurrence in Doe v. Gonzales, “a ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens,” and such unending secrecy could “serve as a cover for possible official misconduct and/or incompetence.”

Marrero called attention to how the government no longer fought against the disclosure of the fact that the FBI had sought “all email addresses associated with the account” or “screen names or other online names associated with the account.” He said this “lent credence that, for years, the non-disclosure requirement enforced against [Merrill] was overly broad and could not be supported by a ‘good reason.'”

The devolution of secrecy shows what the government most wanted to keep secret about the FBI’s request for information, and what becomes apparent is the FBI most wanted to conceal the broad scope of FBI surveillance the agency engages in through NSLs.

“At this moment, when the public is once again debating whether to expand the scope of the government’s surveillance authorities, we should pause to ensure that we know how existing authorities have been construed in secret,” suggested Amanda Lynch, who is a member of the Yale Law School clinic which represented Merrill. “The fact that Mr. Merrill is now able to reveal how the FBI has construed its NSL authority will enhance the quality of the public debate about surveillance and will give the public the opportunity to hold the FBI accountable.”

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."