In early 2004, an FBI agent visited Nicholas Merrill, who was running an Internet service provider in New York called Calyx. Under the law, recipients of the letters are barred from telling anyone about their encounter with the FBI.
While Nicholas Merrill was not the first American to be gagged after receiving a national security letter, an NSL, he was the first to challenge the FBI’s secret tactics. After receiving the national security letter, Merrill went to the American Civil Liberties Union, which then filed the first lawsuit challenging the national security letter statute. In the lawsuit, Nick Merrill was simply identified as “John Doe.” It was only in August 2010, after reaching a settlement with the FBI, that Merrill was able to reveal his identity.
Nick Merrill talking:
I got a visit, personally, from an FBI agent in my offices in 2004. The agent delivered to me a letter, and the letter demanded that I hand over a lot of information about one of the clients of the company. It caused me great concern, because the first thing that sort of really shocked me was that this was not a court order. This was a letter from the FBI signed by an attorney. And it seemed to me that it was not a legal order, and it seemed that it was pretty clearly not constitutional on its face. The FBI had not gone to court. It had not proven probable cause before a judge. And so, the other problem, though, with the letter was that it told me that I could never tell any person that I had received the letter, which pretty obviously precluded me from speaking to a lawyer or to anyone else in my company or to anyone about it. And I was quite afraid to disobey the letter. But after I took a bit of time and thought about it, I decided, you know, we always have the right to speak to an attorney, so I called my private attorney. We then went together to the ACLU, and then we ended up embroiled in this really long court saga which has lasted almost seven years.
somewhere about two years into the case, the librarians became co-plaintiffs along with me, although at that time they were just known as “Connecticut Doe,” and I was “New York Doe,” and we didn’t know who each other were until many years later. But, yes, the librarians had also received a national security letter in Connecticut for library patron records, also a very upsetting issue.
The case, though, it was an interesting case because it resulted in the national security letter provision of the PATRIOT Act being ruled unconstitutional twice. And actually, recently, I think, in California in the Ninth Circuit, there was a similar ruling. The problem was, though, we were never able to get to the Supreme Court to get a final, binding ruling that would affect the whole country. And to be honest, it felt to me like the government wasn’t really acting in good faith, that when it seemed like they were going to lose, they would back out of all these cases. It seemed to me that they were afraid to have the Supreme Court rule on the issue itself.
It’s really important because what’s at the heart of this matter here, the 800-pound gorilla in the room, is warrantless wiretapping and surveillance of Americans without any suspicion of wrongdoing. As we’ve heard with the revelations from Edward Snowden, this is a very widespread problem. And what I started to get a sense was happening back in 2004 was that essentially the rule of law was being eroded by a combination of the Department of Justice acting without proper checks and balances overseeing what they were doing. By evading the courts and by evading the court oversight and by issuing these national security letters themselves, they were able to gather huge amounts of information on Americans. And then, also by putting everyone under gag orders who received them, they were able to prevent anyone from talking about what was happening.
If you even talk about getting a national security letter, you face five years in prison.
One of the points that we’re trying to make is that the concern about cybersecurity and the concerns about privacy are really two sides of the same coin, and that there are a lot of really uncontroversial examples in which organizations and people need confidentiality. Medicine is one. Journalism is another. Human rights organizations is an obvious third. We’re trying to make the case that if the right of Americans to encrypt their data and to have private information is taken away, that it’s going to have grave, far-reaching effects on many kinds of industries, on our democracy as a whole, and our standing in the world. There has also been a study recently saying that the government’s policies weakening the right to privacy and the right to use encryption is going to cost American cloud service providers upwards of $35 billion over the next few years. So I think it’s going to have really terrible economic effects. And these are some issues that we need to consider when we look at the policies that the government is taking.
– source democracynow.org
Nicholas Merrill, the executive director of the Calyx Institute. He was president of an Internet service provider, or ISP, and filed the first court challenge to the FBI’s national security letters in 2004. For six years the FBI barred him from revealing it had sent him a national security letter demanding information about his clients–including Democracy Now!, whose website was hosted by his company. Merrill fought the government and won a settlement in 2010 with the help of the ACLU that allowed him to reveal his identity and discuss some details about his experience.