Federal Court Lifts National Security Letter Gag Order; First Time in 14 Years

Such a gag order has not been lifted since the USA Patriot in 2001 expanded the FBI’s authority to unilaterally demand that certain businesses turn over records — and never tell anyone about it.

Photo: Chip Somodevilla/Getty Images

A federal district court judge in New York has fully lifted an 11-year-old gag order that the FBI imposed on Nicholas Merrill, the founder of a small Internet service provider, to prevent him from speaking about a national security letter served on him in 2004.

It marked the first time such a gag order has been fully lifted since the USA Patriot Act in 2001 expanded the FBI’s authority to unilaterally demand that certain businesses turn over records simply by writing a letter saying the information is needed for national security purposes.

Like other NSL recipients, Merrill was also instructed that he could not mention the order to anyone.

Merrill said the court ruling allowing him to discuss the details of the sealed request in full will allow him to ignite a debate among Americans about the unchecked surveillance powers of the U.S. government.

“For more than a decade, the FBI has fought tooth and nail in order to prevent me from speaking freely about the NSL I received,” Merrill said in a press release published by the Calyx Institute, where he serves as director.

U.S. District Court Judge Victor Marrero’s decision “vindicates the public’s right to know how the FBI uses warrantless surveillance to peer into our digital lives,” Merrill said. “I hope today’s victory will finally allow Americans to engage in an informed debate about the proper scope of the government’s warrantless surveillance powers.”

Merrill and the American Civil Liberties Union launched what turned out to be a long legal battle against the FBI in 2004 in the case Doe v. Ashcroft. Merrill finally won the right to reveal his own identity in 2010.

The FBI withdrew its national security letter request after Merrill continually refused to comply, but Merrill decided to keep fighting the gag order. Law students and attorneys of the Media Freedom and Information Access Clinic at Yale Law School represented him in his 2015 case against the Justice Department and the FBI seeking to overturn the gag order.

In his ruling, the judge found no “good reason” to continue to silence Merrill about his experience with the FBI. If Merrill were only allowed to disclose details about the request “in a world in which no threat of terrorism exists,” or in the case that the FBI disclosed the records itself — two extremely unlikely possibilities — it would effectively prevent “accountability of the government to the people,” the judge wrote.

Merrill is not free to talk quite yet, however — he will remain under gag order for 90 days, giving the government time to appeal.

The Electronic Frontier Foundation estimates that over 300,000 national security letters have been issued since 2001. The Justice Department concluded in 2008 that the FBI had abused its power, often gathering information on large numbers of U.S. citizens, infringing on their First Amendment rights, and leaving hardly any paper trail, until changes were adopted in 2006.

The Office of the Director of National Intelligence announced earlier this year that the FBI would start presumptively terminating national security letter nondisclosure orders either three years after the opening of a fully predicated investigation or at the investigation’s close, whichever came earlier. But that change was not retroactive.

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