Imagine it is February 2004. You are Nicholas Merrill, the CEO of Calyx Internet Access, a small internet service provider in New York City. You are about to receive a National Security Letter (NSL). National Security Letters don’t come in the mail. They are hand-delivered by FBI agents. Nick Merrill told The Guardian that his agent was wearing a trench coat and “looked like an FBI agent from central casting.”
You read your NSL and become very anxious, frightened, and upset. A National Security Letter does not ask for your cooperation with the federal government; it demands your cooperation. NSLs have been around since 1978 and were originally used to obtain financial information about known foreign agents. In 1993, they were amended for use with people not under direct investigation, and with the 2001 passage of the PATRIOT Act they became an extremely popular surveillance tool. According to Andrew Crocker, a staff attorney on the civil liberties team at the Electronic Frontier Foundation (EFF), the FBI has issued 300,000 NSL attachments since 2001.
But let’s get back to you. You just read a letter that demands you provide information about one of your business clients—the same information Nick Merrill was asked to give—detailed and varied personal information, including “browser history, IP addresses the subscriber connected to, email addresses, screen names, and online aliases associated with the account, plus six months worth of online purchases,” according to an article on threatpost.com. Oh, and don’t forget the radius log.
You probably want to talk to your friends and loved ones about all of this as soon as you possibly can, but an NSL comes with a gag order, so you can’t tell anyone. Not a soul.
That is what happened to Nick Merrill, despite the fact that, as he stated in the Frontline film United States of Secrecy (watch it here), and as was quoted in an article at pbs.org, “It was not a warrant. It was not stamped or signed by a court or a judge.” The orders are so secret, the only entity named in them is the FBI.
According to Merrill, the gag order took its toll on his life: “It cut me off from the people who in normal life would be your support network. Close friends, family. So it was extremely weird.” But Nick did call someone. He called his lawyer, and soon after that he became the first person ever to initiate a court challenge to a gag order associated with an NSL attachment. His name on the case was listed as “John Doe.”
It took over 11 years for Merrill to win the right to be “ungagged.” For his final case, opened in 2014, he was assisted by the Media Freedom and Information Access Clinic at Yale Law School. This article on their web site provides details about the case and quotes from the law students who represented him.
Merrill’s case is a First Amendment victory, but it is far from the end of the problem of NSLs. Imagine you just got one today, in December 2015. You are now in the same situation that Nicholas Merrill found himself in 11 years ago. You are a victim of the imbalance of power, a lonely figure trapped in secrecy. But as least you have the benefit of Edward Snowden, who made privacy a hot topic, and Nicholas Merrill, who fought the system and won. So go ahead, call your lawyer.