Internet Provider Gagged for Decade Reveals What FBI Wanted Without Warrant

A very long legal fight is over.

Nicholas Merrill fought more than 11 years for the right to discuss the content of the national security letter, at right, that he received from the FBI.

By Steven Nelson
Nov. 30, 2015 | 4:18 p.m. EST+ More

For years after receiving a national security letter from the FBI, he was an anonymous litigant and unnamed op-ed writer, barred by a gag order from revealing that he had received a warrantless demand for customer information. Now, Nicholas Merrill’s gag order has been lifted in full, and – apparently for the first time – an NSL recipient can speak openly without fear of punishment.

Merrill, owner of now-defunct Calyx Internet Access, provided Internet service to about 200 customers when he received the order in February 2004. He refused to turn over the records of the targeted customer and went to court with American Civil Liberties Union representation.

Merrill won the right to identify himself in 2010, but could not say what the ultimately withdrawn letter said. In August, a federal judge ordered the associated gag order lifted, with a 90-day pause to allow the Justice Department time to appeal, which it chose not to do.
Victory in hand, Merrill said Monday that the NSL he received demanded his customer’s full Internet browsing history, records of online purchases, a list of Internet Protocol addresses for the target's contacts and location information. A copy of the document with more technical language was released.

“I am happy that the government decided to finally stop appealing every time they lost,” says Merrill, who now runs a nonprofit called the Calyx Institute. “I honestly didn't expect them not to appeal.”

Merrill says the customer targeted by the FBI does not wish to be identified, but that they supported his legal efforts.

James Margolin, a spokesman for the New York City-based U.S. attorney’s office, which handled the case, declined to comment on the release.

On a conference call Monday afternoon, Merrill told a reporter who pressed him on whether the letter's demands truly were as expansive as described that a reading to the contrary of certain terms – such as “any other information you consider to be an electronic communication transactional record” – would make him fearful of consequences.

The FBI's use of national security letters has been relatively stable in recent years.

Yale Law School’s Media Freedom and Information Access Clinic represented Merrill in the final leg of his struggle. Clinic member Amanda Lynch said on the conference call that “the public must know how the government has construed the surveillance authorities it already has before it can amend them.”

Merrill, she said, “had to stand by while important legislative debates about government surveillance reform took place, including those that resulted in passage of the USA Freedom Act, and that’s a shame.”

The FBI issued more than 400,000 national security letters between 2003 and 2011, between 30,000 and more than 55,000 each year, according to a report issued last year by the Justice Department’s inspector general.

Merrill isn’t the only person who went to court over the orders, the authority for which was expanded by the 2001 Patriot Act.

The Electronic Frontier Foundation, for example, still represents two Internet service providers suing over NSLs received in 2011 and later.

“While the New York federal court’s decision is not binding on the San Francisco federal court, the decision could be influential in that it shows that a gag can be lifted without harming national security,” says EFF attorney Kurt Opsahl, who says the disclosure also could help shape public debate.

“Unfortunately,” he says, “with the unconstitutional gag in still place for our clients, they cannot fully participate in this conversation. While the gag remains, we cannot show you whether or how the requests changed over time. We are working hard to lift this unconstitutional gag and end this travesty

The now significantly dated request that was released Monday, Merrill acknowledges in an email, may not reflect what the FBI currently seeks when issuing national security letters.

“I mean, why wouldn't the FBI get whatever it can since all it costs is one sheet of paper,” he says.

Updated on Nov. 30, 2015: This article was updated to reflect that the U.S. Attorney’s Office for the Southern District of New York declined to comment.