We May Soon Get to Know the Contents of an Actual National Security Letter

Federal court invalidates gag order extending more than a decade.


We already know they asked for everything.
Credit: Braendan Yong |

Nicholas Merrill was once the owner and operator of Calyx Internet Access, a small Internet provider and website host. In 2004 he was served with what is now well-known as a National Security Letter (NSL). This NSL demanded Merrill provide certain user records to the FBI and furthermore gagged Merrill from telling anybody about it or even that he had received an NSL. This was all authorized under the PATRIOT Act.

Now, a decade later, Calyx Internet Access is no more. But after that experience, Merrill founded the Calyx Institute to "educate the public about privacy in digital communications" and to build stronger encryption. Merrill has been fighting in court for the right to reveal what he was ordered to hand over.

Now a federal judge in New York has ordered that the gag order should be lifted. The Intercept has details on the background:

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.

The gag order, however, will remain for 90 days to give the government time to appeal. Any guesses on whether that will happen?