Businessman wins 11-year court battle over FBI’s surveillance gag order

A New York federal district court has ordered the FBI to lift a surveillance gag order that was imposed on a business man under the Patriot Act. Nicholas Merrill spent 11 years challenging its constitutionality.

The case concerns the FBI sending a National Security Letter (NSL) to Merrill, who ran an internet service company, which requested access to his customer’s records. Under the Patriot Act, the recipient of an NSL is prohibited from mentioning the letter, the contents of the letter and what it seeks because of the possible threat to an investigation.

In Merrill’s case, the gag order was imposed by the FBI in 2004.

The court’s latest ruling agreed with Merrill that the government had violated his constitutional rights and marked the first time that a gag order has been lifted since the Patriot Act vastly expanded the FBI’s authority for warrantless spying in 2001.

"Courts cannot, consistent with the First Amendment, simply cannot accept the Government's assertions that disclosure would ... create a (public) risk," said Judge Victor Marrero in his ruling, according to the Intercept.

The court’s order goes into effect in 90 days, giving the US government time to appeal its decision. Merrill remains under the gag for that period.

Earlier this year, Merrill was granted permission to inform his customers that he had been targeted by the federal government. If the government appeal doesn’t go ahead, he will also be free to disclose which records the FBI ordered him to give up.

Under the Patriot Act, Congress granted the FBI, National Security Agency and others the authority to demand phone and email records, but not their contents, from service providers, email services and social networks such as Facebook.

Specifically, a national security letter served on internet companies allowed the FBI to obtain information such as a subscriber’s name, screen name or other online names; records identifying the addresses of electronic mail sent to and from the account; and records relating to merchandise orders/shipping information, but not message content and/or subject fields.

The Electronic Frontier Foundation believes that about 300,000 such letters have been sent since the Patriot Act was enacted in 2001.

Merrill and the American Civil Liberties Union first sued the FBI back in 2004, in the case Doe v. Ashcroft.

“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,” said Merrill in a statement published by the Calyx Institute, where he serves as director.

“Judge Marrero’s decision vindicates the public’s right to know how the FBI uses warrantless surveillance to peer into our digital lives. I hope [this] victory will finally allow Americans to engage in an informed debate about proper the scope of the government’s warrantless surveillance powers.”

Merrill was the first person to challenge the gag order and never complied with the agency’s request for customer information. The FBI eventually withdrew its NSL request after Merrill continually refused to comply, but Merrill decided to keep fighting the gag order.

“[The court’s] decision will finally allow Mr. Merrill to shed light on the scope of the FBI’s claimed authority under the NSL statute, and to explain how the FBI’s interpretation is deeply problematic and potentially unlawful,” stated Jonathan Manes, supervising attorney in the Media Freedom and Information Access Clinic, in a statement.

“If the recent revelations and debates over mass surveillance have taught us anything, it is that there can be no meaningful democratic oversight if the public does not know how the law has been interpreted behind closed doors,” Manes added.

Earlier this year, the White House said that NSL gag orders must be lifted after three years or the close of an investigation, whichever comes first. The decision did not apply retroactively, therefore the FBI’s gag order against Merrill continued.

Merrill is not the only businessman to fight unchecked government surveillance. In August 2013, Lavabit, an email service that boasted of its security features and claimed 350,000 customers, abruptly shut down its service after the owner rejected a court order for cooperation with the US government to participate in surveillance on its customers. The service was allegedly used by NSA whistleblower Edward Snowden. It was the first company to shut down rather than comply with government surveillance, according to the Guardian.

The founder of Lavabit, Ladar Levison, wrote on the company's website: "I have been forced to make a difficult decision: to become complicit in crimes against the American people or walk away from nearly ten years of hard work by shutting down Lavabit.