Federal court overturns FBI’s warrantless National Security Letter gag order

One of the FBI's most controversial practices faces a major setback.

Feb 29, 2020, 7:39 pm*

Tech

Kevin Collier 

Kevin Collier

A federal court has fully invalidated the use of one of the FBI‘s most controversial tools.

The case addressed the use of a National Security Letter, a legal demand for information that’s often used by the Federal Bureau of Investigation, and which both does not require a warrant and gags its recipients.

This is believed to be the first time an NSL gag order has been fully lifted since the practice was greatly expanded by the USA Patriot Act, which was first enacted in 2001.

The case is that of Nicholas Merrill, one of the most outspoken of the few known NSL recipients, and the founder of Calyx, a small, since-defunct Internet service provider. In 2004, the FBI served him with an NSL, compelling him to not only turn over information on one of his customers, but to keep his mouth shut that he’d ever received the order.

Merrill spent years in legal limbo, and he was forced to stay silent even as a judge gave the go-ahead to make as elements of his case public. At one point, he couldn’t publicly accept an award given to him by the ACLU as it would be a violation of the NSL’s gag order.

In his decision, Judge Victor Marrero said that “the Government has not demonstrated a good reason to believe that potential targets of national security investigations will change their behavior to evade detection, or that disclosure of [the NSL] would create a substantial risk.”

“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 jubilant press release. “I hope today’s victory will finally allow Americans to engage in an informed debate about proper the scope of the government’s warrantless surveillance powers.”

The government has 90 days to appeal the decision before the gag is formally and completely undone.

H/T The Intercept. Photo via johndbritton/Flickr (CC BY SA 2.0) | Remix by Fernando Alfonso III

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*First Published: Sep 16, 2015, 10:05 am