The most serious kind of subpoena - called a 'National Security Letter' - used to have a lifetime gag-order automatically attached. That is until Nicholas Merrill appealed his and won the right to talk about it. Despite 50,000 national security letters a year, there are only three organizations that have ever won the right to say they got one. In a segment that originally aired in January of 2011, Nick Merrill tells Bob why he's the exception and the rule.
BOB GARFIELD: There is a legal device that is used by the US government to obtain personal information about citizens called the National Security Letter. These are essentially subpoenas with a lifetime gag order attached, a serious gag. I mean, you can’t tell your lawyer, you can’t tell your business partners or even your family. Out of hundreds of thousands of recipients, only three people have ever won the right to disclose that they got a National Security Letter. Chief among them Nicholas Merrill, the owner of a small Internet service provider called Calyx, in New York. I spoke to Merrill in 2011 and asked him to tell me about being on the receiving end of a National Security Letter.
BOB GARFIELD: So paint me a picture here. I mean, is this like a Law and Order episode deal where someone says your name in a locker room or something and you turn around and he throws you an envelope and says, “You've been served?”
NICHOLAS MERRILL: It was a little more formal than that. I was at my office. It was 2004. And I got a telephone call. The caller told me that they were with the FBI and that someone would be coming by my office with a letter for me. Soon enough I found out that it wasn't a joke, when an actual agent did arrive and handed me an envelope. Inside there was a three-page letter. You can actually view it at ACLU.org/nsl. And basically, the letter ordered me to produce information about one of the clients of my ISP.
BOB GARFIELD: And what do you do next?
NICHOLAS MERRILL: What I did right at that very moment was simply read the letter. You know, a number of things leapt out at me. The first thing was a completely absolute commandment that I was never to tell anyone.
BOB GARFIELD: Not even your lawyer?
NICHOLAS MERRILL: Your reaction just now was very close to my reaction. I looked at the agent and I said, “Not even my lawyer, not even my business partners?” And the agent just kind of shrugged.
BOB GARFIELD: All right, so what happened next?
NICHOLAS MERRILL: The agent left. I tried to make sense of it all. And one of the first things that I was looking for was a judge’s signature or which court this supposed subpoena had come from, and there was none. So I called my attorney, my feeling being I'm an American and I can always talk to an attorney, and no one can tell me that I can't. He was a bit taken aback. And coincidentally, one of the clients of my Internet service provider was the New York branch of the ACLU. So we got in touch with them.
BOB GARFIELD: [LAUGHS] So, so not only are you not - not telling anybody, now you’re telling everybody. [LAUGHS] You go to the ACLU and they advise you what?
NICHOLAS MERRILL: They told me they had never seen one before. And at that point I knew that this was really, really serious, and I started to wonder what had I gotten myself into.
BOB GARFIELD: Did you comply with the other parts of the order, to turn over the information to the FBI that they were seeking?
NICHOLAS MERRILL: No, no, I never did.
BOB GARFIELD: And the court ruled in your favor, but not entirely. What was the gist of its decision?
NICHOLAS MERRILL: It was the first time anyone had ever challenged any of the powers from the USA Patriot Act. The court ruled two separate times that the National Security Letters provision is unconstitutional and a violation of the First Amendment, the Fourth Amendment and the Fifth Amendment.
BOB GARFIELD: Before we get to the current legal disposition of your National Security Letter, let's talk about the government’s concerns. Let's say one of your Internet clients at the time was a terrorist. Obviously, you would not want to tip such a person off that the Feds were on the trail. So, you know, if not a secret subpoena, what is the solution?
NICHOLAS MERRILL: It seems to me that the existing tools, such as normal subpoenas from a judge, are workable. Numerous terrorism plots have been broken up using those types of tools. If we don't have checks and balances, then we're really, I think, going down a dangerous path, and the purpose of having a judge listen to the evidence from law enforcement is to provide a check on their power.
BOB GARFIELD: Okay, so back to your disposition. You ultimately won the right to disclose that you had received this letter, but you didn't win the right to disclose [LAUGHS] everything. And, in fact, even as we speak, you are holding in your lap a laptop with a six-page, single-spaced checklist of things you are or are not allowed to say, lest you wind up in Leavenworth. How ungagged are you at this point?
NICHOLAS MERRILL: The way I try to explain it to people is that if before I was partially released from the gag, there were 100 things I couldn't talk about, right now there’s probably 97 things that I can't talk about. The main things that I won the right to say are that I was the plaintiff in this case and that I received a National Security Letter. During the six years when I couldn't say anything, I couldn't tell my family, I couldn't tell my fiancée, I couldn't speak to my elected representatives. Basically, it forced me to sometimes even lie to people. That was a real problem for me.
Now that I can at least say that I was the plaintiff in this case, it is somewhat of a relief but, at the same time, people ask me things that I can't answer. I mean, I've been warned that I should be really careful because anything I say is probably being listened to, particularly public statements. I respect that, even within the privacy of my own home because it’s a huge risk.
BOB GARFIELD: It turns out that you’re kind of a poster child for a very large group of people. Do you feel a burden of responsibility that you’re speaking for this gigantic cohort of the gagged?
NICHOLAS MERRILL: Between 2003 and 2006, around 200,000 of these letters went out. That works out to be nearly one letter per 1,000 Americans. Although you’re allowed to challenge the gag every year now, under the new revised law, the last time I did it, the government presented secret evidence that only they and the judge could see, and my attorneys could not see, and therefore could not challenge. It does kind of add up to a lot of responsibility, and that’s part of what motivated me to start my nonprofit organization, the Calyx Institute. Part of it is to defend people who are gagged. Part of it is also to promote best practices among telecommunications companies, in regards to the privacy of customer data.
BOB GARFIELD: Nick, thank you so much.
NICHOLAS MERRILL: All right, thank you very much for having me on the show.
BOB GARFIELD: Nicholas Merrill is the founder of the Calyx Internet Access Corporation and of the nonprofit Calyx Institute, which works to put encryption tools solely in the hands of ISP users. Thus, an ISP would have no access to readable client data that a National Security Letter might demand.