FBI needs no warrant to see your browsing history, reveals @nickcalyx

Nicholas Merrill wins landmark case, unveiling FBI “abuse”

Nicholas Merrill FBI NSL gag
Credit: Cato Institute

Nicholas Merrill, who runs a small ISP and hosting company, was instructed by the FBI to give up all kinds of personal information about one of his customers. He’s since been embroiled in an 11-year battle to fully reveal the so-called National Security Letter (NSL).

The case has just ended in complete victory for Merrill, and total legal humiliation for the FBI. Not only is the gag order now totally lifted, but the entire, un-redacted contents of the NSL are now in the public domain.

Notably, the judge in the case ruled that the FBI’s claims that certain parts of the NSL should be secret were “absurd.” Some observers are even saying the FBI’s actions were an abuse of the law.

In IT Blogwatch, bloggers now know known unknowns.

curated these bloggy bits for your entertainment.


Warrantless wiretapping? In this, The Land Of The Free? David Kravets bring us The National Security Letter spy tool has been uncloaked, and it’s bad:

[An] NSL is a potent surveillance tool that allows the government to acquire a wide swath of private information...without a warrant.

The letters don't need a judge's signature and come with a gag to the recipient.

As part of a First Amendment lawsuit, a federal judge ordered the release of what the FBI was seeking from a small ISP: [The] target's complete Web browsing history, IP addresses of everyone a person has corresponded with, and records of all online purchases.

All that's required is an agent's signature denoting that the information is relevant to an investigation.

Merrill's lawsuit took six years before he was able to say he received an NSL targeting one of his customers. Litigation continued [for 11 years until] Merrill was finally allowed to disclose what the FBI was demanding.


Let’s hear from the horse's mouth. Here’s Nicholas Merrill:

Today my #NationalSecurityLetter gag order is gone after over 11 years of litigation.

The @FBI shouldn't be allowed to demand #private customer records without any suspicion of wrongdoing or without any approval from a court.

By silencing recipients of #NSL's @FBI has been able to prevent ISPs, phone companies & others from effectively collaborating for reform.

The @FBI should not be able to silence innocent critics like myself - or hide abuses - simply by saying the magic words "National Security."


Wait, 11 years? Eleven??? The ACLU’s Jameel Jaffer goes back in time—A Decade-Old Gag Order, Lifted:

An FBI agent...handed Nick a “national security letter” demanding that Calyx turn over sensitive information about one of its subscribers. The letter included a gag order prohibiting Calyx from disclosing to anyone that it had received the demand.

The FBI issued a staggering 143,074 NSLs between 2003 and 2005 [each] accompanied by a categorical and permanent gag order.

Now, more than 11 years after the order was imposed, the district court has lifted the gag order in its entirety. ... Nick can finally talk freely.

As government officials once again press for more surveillance powers, it is worth remembering.there’s still a lot we don’t know about how existing surveillance powers are being used.

And [the FBI] has abused the state-secrets privilege to prevent courts from considering whether intrusive surveillance authorities are lawful.


Abuse? Hey, that’s a serious allegation. Marcy Wheeler looks back at some of the information the FBI tried to redact, in FBI Redacted Passages Showing Judge Mocking Its Stupid Claims:

The expiration of his gag order also allowed him to publish an unredacted copy of the ruling.

Not only does it show how ridiculous were FBI’s claims...but also makes it clear FBI [hid] the fact that the judge...was mocking the stupidity of its claims.

Judge Marrero...kicked their ass about the absurdity of some claims [and] reminded the FBI that they had claimed they were chasing “sophisticated foreign adversaries,” not dim-witted terrorists. ... And he revealed that their declarant was demanding things they had already disclosed be kept secret.

Hiding that a judge is mocking your stupid claims doesn’t fit under any legal use. ... It’s abuse, pure and simple.


Meanwhile, Brandon Tansey sums it up. Check out his pithy tweet:

[It’s] a great example of one of those things you "know" being turned into something you ACTUALLY know.

And Finally...

Merrill speaks out in 2011


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