National Security Letter Recipient Can Speak Out For First Time Since FBI Demanded Customer Records From Him

The FBI has partially lifted a gag it
imposed on American Civil Liberties Union client Nicholas Merrill in
2004 that prevented him from disclosing to anyone that he received a
national security letter (NSL) demanding private customer records.
Merrill, who received the NSL as the president of an Internet service
provider (ISP), can now reveal his identity and speak about his
experience for the first time since receiving the NSL. The ACLU and New
York Civil Liberties Union filed a lawsuit challenging the NSL statute
and the gag order on behalf of Merrill (then called John Doe) in April
2004, which resulted in numerous court rulings finding the NSL statute
unconstitutional. Merrill was the first person ever to challenge an NSL
in court.

"After six long years of not being
able to tell anyone at all what happened to me - not even my family -
I'm grateful to finally be able to talk about my experience of being
served with a national security letter," said Merrill. "Internet users
do not give up their privacy rights when they log on, and the FBI should
not have the power to secretly demand that ISPs turn over
constitutionally protected information about their users without a court
order. I hope my successful challenge to the FBI's NSL gag power will
empower others who may have received NSLs to speak out."

NSLs are secret record demands the
FBI issues to obtain access to personal customer records from ISPs,
libraries, financial institutions and credit reporting agencies without
court approval or even suspicion of wrongdoing. Because the FBI can gag
NSL recipients to prohibit them from disclosing anything about the
record demands they receive, the FBI's use and potential abuse of the
NSL power has been shrouded in excessive secrecy. While the NSL served
on Merrill stated that he was prohibited from telling anyone about it,
he decided to challenge the demand in court because he believed that the
FBI was ordering him to turn over constitutionally protected
information about one of his clients. Because of the FBI-imposed gag,
Merrill was prohibited from talking about the NSL or revealing his
identity and role in the lawsuit until today, even though the FBI
abandoned its demand for records from Merrill more than three years ago.

In December 2008, the Second Circuit
Court of Appeals, ruling in Merrill's case, found that some of the NSL
statute's gag provisions were unconstitutional because they wrongly
placed the burden on NSL recipients to challenge gag orders, narrowly
limited judicial review of gag orders and required courts to defer
entirely to the executive branch. The appeals court sent the case back
to the U.S. District Court for the Southern District of New York and
ordered the government to justify the constitutionality of the gag on
Merrill. On July 30, the parties reached a settlement in the case. As
part of that settlement, the FBI agreed that Merrill could now identify
himself as the John Doe NSL recipient.

"We are thrilled that Nick will
finally be able to speak out about why he took the courageous step of
challenging the FBI's NSL power. Thanks to Nick's actions, courts have
now recognized the need for judicial oversight of the government's
dangerous NSL gag power," said Melissa Goodman, staff attorney with the
ACLU National Security Project. "But even though this case has resulted
in significant improvements to NSL procedures, innocent Americans'
private records remain too vulnerable to secret and warrantless data
collection by the FBI. At a minimum, the FBI should have to show
individual suspicion before it issues an NSL for an individual's
personal information and invades Americans' right to privacy and free
speech on the Internet."

While misuse and abuse of the NSL
power has been widely documented, the Obama administration is now
seeking to expand the statute to allow the FBI to demand even more
records without court approval. In July, the Obama administration
proposed to expand the statute to allow the FBI to get Americans'
Internet activity records without court approval or even suspicion of
wrongdoing.

In 2009, Congressmen Jerrold Nadler
(D-NY) and Jeff Flake (R-AZ) reintroduced the National Security Letters
Reform Act, aimed at reigning in abuse of the power. The ACLU has called
on Congress to reform the remaining constitutional defects of the NSL
gag power and reject Obama proposals to expand the NSL statute.

In addition to Goodman, attorneys on
the case are Jameel Jaffer of the national ACLU and Arthur Eisenberg of
the NYCLU.

More information about the case is
available online at: www.aclu.org//national-security/doe-v-holder