Over a decade ago, Nicholas Merrill received a National Security Letter from the FBI asking him to turn over a customer’s data. Merrill, who owned a company called Calyx Internet Access, refused to give it up. Instead, he fought a national security gag order for 11 years.
After winning a suit against FBI Director James Comey and Attorney General Loretta Lynch, Merrill can now speak about that Bush-era NSL. These letters function similarly to subpoenas, and the FBI sends them to compel companies to turn over information when there’s a national security-related investigation. The difference is that unlike subpoenas, recipients are not allowed to disclose that they’ve received a letter. The FBI regularly sends these letters to major tech companies like Google and Microsoft to get user data.
We still don’t know whose information the FBI wanted from Merrill; he is keeping the target of the NSL a secret to protect their privacy. Whoever it was, the national security threat clearly wasn’t pressing—the FBI withdrew the letter as Merrill fought his case.
What was pressing was keeping Merrill quiet. What Merrill has to say now is more disturbing than it would’ve been in 2004. Since then we’ve discovered over and over that government agencies really lean into the most generous interpretations of their boundaries when it comes to collecting data on citizens. Merrill wants to highlight that the FBI uses NSLs to conduct intrusive surveillance without a warrant, and without probable cause—and then it uses a gag order to silence the people and companies asked to turn over sensitive data.
The FBI wanted the phone number, billing information, shipping records, and a host of other personal data on Merrill’s target. Merrill stressed that the FBI made it clear that cell-site location information was included in its request for “radius logs.”
“The FBI believes it has the authority to do that, just by issuing an NSL letter,” Merrill said in a teleconference.
Federal district judge Victor Marrero called the FBI’s position on its gag order “overly broad,” pointing out that much of the NSL information that the government tried to keep secret was already publicly available.
Merrill is the first person to successfully fully lift this kind of gag order, and while he’s not telling us anything particularly surprising about how sweeping the FBI’s data requests are, it is frightening that it took him over a decade to legally say it. Just remember: There are an unknown number of NSLs out there.
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