Old News

Nick Merrill: the man who may unlock the secrecy of the FBI’s controversial subpoenas

by Spencer Ackerman, The Guardian

Thursday 17 September 2015 07.30 EDT

Unless the US Justice Department challenges a federal judge’s order that was kept secret until Monday, 27 November will be a landmark date for transparency in the post-9/11 era. The black bars obscuring the specific kinds of data the FBI sought from Merrill in 2004 will lift, revealing categories of information the bureau seeks to acquire outside the normal warrant process.

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Merrill, president of the firm Calyx, which at the time provided web hosting services, chose to fight the NSL instead of complying. He said that the public would be horrified to see the sorts of things the FBI acquires without a warrant.

“Internet service providers, email providers and other online services often store huge amounts of intensely personal and revealing data. NSLs have allowed the FBI to run rampant, demanding the sensitive records of innocent people in complete secrecy, avoiding the constitution’s carefully designed system of checks and balances, without ever appearing before a federal judge,” Merrill, now 42, told the Guardian.

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The 2001 Patriot Act lowered the standards for issuing NSLs substantially. No longer did the FBI need a particularized suspicion against an individual target, just “relevance” to a terrorism or espionage investigation. Special agents-in-charge at the FBI’s 56 field offices could now issue an NSL, not merely senior officials at its Washington headquarters. The gag orders, however, remained.

Accordingly, the Patriot Act transformed NSLs from a rarity into a routine tool. While secrecy has made hard numbers about NSLs hard to acquire, the FBI made 8,500 requests for data through NSLs in 2000. In 2014 an advisory group on surveillance appointed by Barack Obama reported that the FBI now issues 60 NSLs on average every day, which works out to 21,900 annually. Since a single NSL can request records from multiple people, the total number of people affected is likely to be vastly higher – and remains obscured in secrecy.

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Obama’s surveillance advisory group, which included former US intelligence officials, warned that NSLs sought for intelligence investigations “are especially likely to implicate highly sensitive and personal information and to have potentially severe consequences for the individuals under investigation”. It said it was “unable to identify a principled reason why NSLs should be issued by FBI officials“.

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As Merrill sought to disclose more, the FBI said, according to New York federal judge Victor Marrero, Merrill “would reveal law enforcement techniques that the FBI has not acknowledged in the context of NSLs, would indicate the types of information the FBI deems important for investigative purposes, and could lead to potential targets of investigations changing their behavior to evade law enforcement detection”.

Marrero, on 28 August, ruled in Merrill’s favor anyway. But the judge’s opinion was kept secret until Monday to ensure that it did not itself reveal classified information.

“The gag was never necessary to protect national security, but to prevent a fulsome debate about the scope of the government’s unchecked power to obtain personal information about Americans,” said German, the former FBI agent, now with the Brennan Center for Justice at NYU Law School.

“Its release should be just the first step in a much more comprehensive discussion about the full range of government programs to spy on its own citizens.”