A recent push by the White House to expand the ability of the FBI to obtain customer information from internet service providers has focused attention on the threat to privacy and free speech posed by so-called “national security letters” (NSL).
These letters not only require that information be handed over without a warrant but also impose a gag order on the recipient to prevent them from even revealing that the request has been made
The Washington Post’s Ellen Nakashima, who reported two weeks ago on concerns expressed by internet privacy advocates about the administration’s proposal, has now cast further light on the use of these letters in the case of one man who successfully sued to have a gag order lifted.
“For six years, Nicholas Merrill has lived in a surreal world of half-truths,” Nakashima begins, “where he could not tell even his fiancee, his closest friends or his mother that he is ‘John Doe’ — the man who filed the first-ever court challenge to the FBI’s ability to obtain personal data on Americans without judicial approval. … Now, following the partial lifting of his gag order 11 days ago as a result of an FBI settlement, Merrill can speak openly for the first time about the experience.”
Melissa Goodman, an ACLU lawyer who helped Merrill sue the government, told the Post, “One of the most dangerous and troubling things about the FBI’s national security letter powers is how much it has been shrouded in secrecy.”
“Thanks to Nick’s actions, courts have now recognized the need for judicial oversight of the government’s dangerous NSL gag power,” Goodman commented in an ACLU press release. “But even though this case has resulted in significant improvements to NSL procedures, innocent Americans’ private records remain too vulnerable to secret and warrantless data collection by the FBI. At a minimum, the FBI should have to show individual suspicion before it issues an NSL for an individual’s personal information and invades Americans’ right to privacy and free speech on the Internet.”
The FBI argues that it needs secrecy to protect its “investigations, sources and methods,” but it has been criticized by the Justice Department’s inspector general for overusing, and at times abusing, the system. In 2006, for example, four Connecticut librarians went public to describe the “surreal” experience of having had a lifetime gag order imposed on them in connection with a demand for records of patrons’ computer use.
In reporting on the library case, Mother Jones explained, “National security letters are a little-known FBI tool originally used in foreign intelligence surveillance to obtain phone, financial, and electronic records without court approval. Rarely employed until 2001, they exploded in number after the Patriot Act drastically eased restrictions on their use, allowing NSLs to be served by FBI agents on anyone — whether or not they were the subject of a criminal investigation. In 2000, 8,500 NSLs were issued; by contrast, between 2003 and 2005 the FBI issued more than 143,000 NSLs, only one of which led to a conviction in a terrorism case.”
“It seemed to be acting like a search warrant, but it wasn’t a search warrant signed by a judge,” Merrill said of the national security letter which was handed to him by an FBI agent in February 2004. “I wouldn’t want the FBI to demand stuff like that about me without a warrant.”
According to the Post, “The letter said that the information was sought for an investigation against international terrorism or clandestine intelligence activities. Merrill said he thought it ‘outlandish’ that any of his clients, many of whom were ad agencies and major companies as well as human-rights and other nonprofit groups, would be investigated for terrorism or espionage.”
Merrill immediately contacted his lawyer — even though that in itself was a violation of the gag order — and together they approached the ACLU, which filed a case on his behalf against the Justice Department.
“My gut feeling is IÃ¢â‚¬â„¢m an American,” Merrill told Wired this week. “I always have a right to an attorney. ThereÃ¢â‚¬â„¢s no such thing as you canÃ¢â‚¬â„¢t talk to your attorney.”
“I probably had like thousands and thousands of records on each client,” he added, “if you consider that you host things and youÃ¢â‚¬â„¢re using software that creates log files. . . . ISPs have a lot of records on every client typically. They may have records of every time you posted something, of every web site you visited.”
In September 2004, a federal district court ruled that the NSL statute as it stood was unconstitutional, which forced Congress to amend the law so that a recipient could challenge both the demand to hand over records and the gag order. The FBI dropped its demand that Merrill provide the records, but he was still bound by the gag order. Even when he received an award from the ACLU in 2007 — along with the four librarians — he was not able to accept it publicly.
In 2008, an appeals court held that, even as amended, the national security letter provisions violated the First Amendment and that the FBI would have to justify any gag order that was challenged by proving to a court that disclosure would harm national security.
In 2009, the federal government provided the court with secret evidence supporting the gag order on Merrill but refused to allow him or his lawyers to see it. Since then, the ACLU has worked at negotiating a settlement which allows Merrill to identify himself as long as he does not reveal the contents of the letter. This Monday, a judge finally lifted the gag order and Merrill was free to speak out.