Gag Order Gone, Secrets of a National Security Letter are Revealed

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December 2, 2015

For the first time in 11 years, Nicholas Merrill is allowed to fully reveal the contents of a letter that came hand-delivered to him from the FBI.

In 2004, Merrill, then the CEO of a New York-based web-hosting firm called Calyx, received a so-called national security letter. The letter asked for what Merrill described as a significant array of information from the company, but because of a gag order, he was legally barred from even speaking about it.

“It was not a warrant. It was not stamped or signed by a court or a judge,” Merrill told FRONTLINE in the 2014 film United States of Secrets. “It was this letter demanding this information from me. And it also told me that I could never tell anyone that I had gotten the letter. It said that I could tell ‘no person.'”

In the aftermath of 9/11, the Patriot Act allowed FBI offices across the United States to issue national security letters, or NSLs, without a court’s review, and with a gag order. In 2004 alone, the FBI issued 56,507 NSLs, according to Justice Department figures. The FBI has defended NSLs as an “essential and indispensable intelligence tool,” but Merrill, like many critics, calls them an invasion of privacy. In April 2004, he became the first person to challenge the constitutionality of a NSL in court.

In 2006, the FBI withdrew its demand for data from Merrill, and in 2010, he was allowed to publicly acknowledge receiving an NSL. It was not until Monday, though, that the gag order was lifted in full — a first for the NSL program since the passage of the Patriot Act.

Now free to discuss the letter, Merrill says the NSL sought account information for one of his customers, including an account number; dates the account was opened or closed; addresses linked to the account; the customer’s telephone numbers; cell-tower location data for the client’s phone calls; any screen names associated with the account; any records relating to merchandise orders; billing records; and email addresses linked to the account.

Merrill spoke with FRONTLINE on Tuesday about the lifting of the gag order, his view of the NSL program, and the renewed debate over security and privacy in the wake of last month’s attack on Paris. This is an edited transcript of that conversation:

How did you feel about the gag order being lifted?  

It came as a complete surprise to me, because between myself and the lawyers working on the case, we figured there was a 90 percent chance they would appeal. My overall feelings about the case are still kind of evolving, but I feel somewhat disappointed in that the two things that originally bothered me [about the NSL] were the government searching without warrants and the government putting never-ending gag orders on the recipients of the letters. And while we did win in court multiple times, the changes that actually resulted from that are relatively minor in the grand scheme of things.

The bottom line is, here we are 11 years later and even though the national security letter provision of the law was ruled unconstitutional back in 2004, the government was able to drag on this court battle for so long that in the meantime they issued another roughly 500,000 national security letters. And they’re still issuing them. Even though I sort of won the right for everyone that receives national security letters to go to court, the burden rests on the letter recipient to somehow come up with the resources to go to court.

The traditional way that a search warrant would work would be that the government goes to court and proves probable cause, and the judge would either approve or deny that request. And then they would get to search. The way things are now, the government prints its own search warrant. The FBI prints a search warrant on its own printer and delivers it, and then if the recipient has a problem with it, they on their own dime can go to court to challenge it. It’s an improvement, but it’s not even close to complying with the constitution as far as I understand it.

The NSL you received 11 years ago — what surprised you about the scope of information the FBI asked for?

The amount of information that the government can get with one of these letters can paint an incredibly vivid picture of all aspects of a person’s life — from the professional, to the personal, to the political, to their religious beliefs, to invading the privacy of their marriage, to being able to figure out what their sexual preference is. The amount of information that comes out of a national security letter is just so invasive.

The fact that the government has been treating it so casually, and essentially going out on mass fishing expeditions and gathering the data of potentially millions of Americans without any suspicion of wrongdoing is very upsetting to me as someone who was raised on ideas about American exceptionalism and the belief that our system of government — with its built-in checks and balances and safeguards against abuse — were what made our country different from other countries.

As concerns about terrorist attacks rise in the wake of Paris, what are your concerns about privacy?

From my point of view, what’s really terrifying about the terrorist attacks in Paris is that the terrorists were communicating without the use of any type of security or encryption.* They were speaking in Facebook groups and using regular text messaging on their phones, without taking any steps to cover their tracks or make it harder to listen in on what they were doing. To me this proves that the whole dragnet surveillance system that we’ve built is actually useless, because it didn’t help us at all to prevent that type of attack. That was, without a doubt, a conspiracy of quite a number of people, all conducted through electronic telecommunications.

What that sort of shows me is that my worst fear came true. To put it in an overly binary way: The two possible outcomes are that the government spies on everyone and we’re actually safer or the government spies on us and we’re not safer, and in the end we’ve lost part of our freedom that maybe we’ll never get back. We’ve lost some part of what makes our system great, but in the end we’ve not really gained the security we thought we would get in the trade off for the freedom that we’ve given up.

*Editor’s Note: The investigation into the Paris attacks is ongoing, and while some officials have said that the attackers used encryption technology, no concrete evidence has emerged to date.


Priyanka Boghani

Priyanka Boghani, Deputy Digital Editor, FRONTLINE

Twitter:

@priyankaboghani

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