Eleven years after receiving an FBI request for his private customer information, Internet entrepreneur Nicholas Merrill may now be able to speak openly about the national security letter sent to him by the bureau in 2004.
The Tuesday ruling in a federal district court would allow Merrill, represented by Yale Law School students and supervising attorneys, to speak openly about the national security letter that he received, so long as the government does not appeal the decision in 90 days. National security letters are requests by the FBI to “demand personal customer records from Internet Service Providers, financial institutions and credit companies without prior court approval,” according to the American Civil Liberties Union. National security letters mandate lifelong gag orders that forbid recipients from talking openly about the letters, even to the closest relatives and friends.
Merrill, who was an Internet service provider in New York and whose client’s information was requested by the FBI for reasons still unknown, was the first to challenge the procedure in court under the legal counsel of the ACLU and, later, the Yale Law School Media Freedom and Information Access Clinic.
“It is a bit frustrating that I spent a quarter of my life fighting this unconstitutional attempt to search and gag, but I don’t regret having done this at all,” Merrill said.
Merrill said his primary intention in filing the suit was to start a public debate about how much information the FBI can request without a warrant. He said that not only the public, but also Congress, was effectively prevented from knowing the FBI’s scale of operations. It is important for America’s democracy to have a fully informed legislature and public that knows what the government does, he said.
The decision reached by U.S. District Judge Victor Marrero stated that part of the reason that the court ruled in Merrill’s favor was because disclosing the letter would pose no perceivable threat to national security. Specifically, Marrero stated that there is no good reason for suspects in national security investigations to behave different after a letter’s disclosure so as to evade investigation.
“No terrorists would be surprised that the government is trying to monitor their communications,” said Alex Abdo ’03, who served on the ACLU legal team that represented Merrill 2004 to 2010. “Most people who are kept in the dark are the public.”
Lulu Pantin LAW ’16, who was one of the law students representing Merrill, said it is important for Merrill to reveal the contents of the letter because the public knows little about the FBI’s sense of authority in requesting information. Citizens should be allowed to comment on such government policies, she added, providing that they are aware of the policies to begin with.
Alex Abdo ’03, who served on the ACLU legal team that represented Merrill from 2004 to 2010, said the authority of the national security letters are too broad and are being abused. Abdo added that one of the problems with the letters is that they are so shrouded in secrecy that they essentially cannot be reviewed by the courts.
Amanda Lynch LAW ’16, another law student representing Merrill, said national security letters are issued without judicial review or order, adding that it is still unclear if the letter was issued for national security purposes.
Merrill said he is working on a new type of Internet system he calls “secrecy by design,” by which standard designers of Internet services use encryption to leave private information solely in the control of customers. This way, service providers like himself cannot be requested information by any third party.
Ultimately, Merrill said Internet privacy and cybersecurity go hand in hand. By leaving private data in the hands of customers themselves, cybersecurity problems such as identity theft can be effectively resolved while also meeting the goals of Internet freedom activists, he said.
From 2003 to 2006, nearly 200,000 national security letters were issued.