Scope of Secretive FBI National Security Letters Revealed by First Lifted Gag Order

Fourteen years after the FBI began using national security letters to unilaterally and quietly demand records from Internet service providers, telephone companies and financial institutions, one recipient — former ISP founder Nicholas Merrill — is finally free to talk about what it’s like to get one.

The FBI issues the letters, known as NSLs, without any judicial review whatsoever. And they come with a gag order.

But a federal District Court judge in New York ruled in September that the continuous ban on Merrill’s speech about the order was not justified, considering that the FBI’s investigation was long over and most details about the order were already openly available.

After waiting for 90 days to let the government appeal the decision — which it didn’t — the judge lifted the gag on Monday.

Merrill immediately released the FBI’s attachment to the national security letter it sent him 11 years ago, listing the kinds of information it wanted about a particular customer without getting a warrant.

One of the most striking revelations, Merrill said during a press teleconference, was that the FBI was requesting detailed cell site location information — cellphone tracking records — under the heading of “radius log” information. Traditionally, radius log refers to a user’s attempts to connect to a server or a DSL line — a sort of anachronism given the progress of technology.

“The notion that the government can collect cellphone location information — to turn your cellphone into a tracking device, just by signing a letter — is extremely troubling,” Merrill said.

The court ruling noted that the FBI is no longer requesting this type of information using NSLs, but wants to maintain the possibility of doing so in the future.

The question of whether law enforcement should be required to get a warrant before obtaining detailed cell site location information is currently being reviewed in several federal District Courts, though the Supreme Court recently turned the case down.

And, according to Merrill, the FBI’s request for “any other information which you consider to be an electronic communication transactional record” also includes incredibly invasive things like a detailed list of all the web searches performed on a computer.

Merrill did not release the name of the target of the investigation and the letter, though he is now legally allowed to do so — “for privacy reasons,” he said.

Otherwise, the newly disclosed list did not provide much new information about the FBI’s investigation practices — a big reason why the court chose to lift the gag order.

In the newly unredacted ruling, U.S. District Court Judge Victor Marrero wrote that the case “implicates serious issues, both with respect to the First Amendment and accountability of the government to the people.”

According to the Electronic Frontier Foundation, around 300,000 NSLs have been issued since 2001. By 2008, the Justice Department concluded that the FBI had been abusing its powers with NSLs, even after changing policies in 2006.

“I feel vindicated today,” said Merrill. “But there’s a lot more work to be done.”

Top photo: Attachment to a 2004 national security letter sent to Nick Merrill.