Secret National Security Letter FBI request finally revealed

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In 2004, Nicholas Merrill was president of Calyx Internet Access in New York when he received a National Security Letter (NSL) demanding that he turn over certain information regarding a subscriber to his service. For the past 11 years, Merrill has waged war with the federal government over the right to acknowledge that he had been sent an NSL and to divulge its contents.

National Security Letters, as the name implies, are letters issued by the government. They are used to gather information in cases of national security, but for years not much was known about how the government used them. Companies that received NSLs were forbidden from disclosing that they had received them, or anything about the type of information requested.

The constitutionality of these letters has been repeatedly challenged but, to date, no challenges have survived the court system. Critically, however, NSLs do not require a warrant or any form of judicial oversight. The only thing necessary is that the agent in charge of the investigation believes that the information to be handed over could be relevant to an ongoing terrorism investigation.

In recent years, judges have loosened the permanent gag orders that once bound NSL recipients, even if they haven’t ruled such letters to be unconstitutional. The government went to court to prevent Merrill (pictured above) from disclosing the information it requested back in 2004, arguing that disclosing the data now would threaten national security.

Now, after 11 years, a judge has ruled that Merrill may disclose the information the government sought from him, despite ongoing legal efforts to prevent him from doing so. In the ruling, US District Judge Victor Marrero writes that the government’s case that this disclosure could threaten national security is undermined by the fact that the information and scope of NSL’s is widely available in other public documents. Just because the FBI has refused to acknowledge this information, specifically, doesn’t mean it isn’t already public.

The National Security Letter the government fought to hide.

Marrero also notes that, “many of the remaining redactions in the Attachment are even harder to justify than the categories discussed thus far. For example, the Government seeks to prevent Merrill from disclosing that the Attachment requested “Subscriber day/evening telephone numbers” even though the Government now concedes that the phrase “telephone number” can be disclosed. The Court is not persuaded that there is a “good reason” to believe that disclosure of the fact that the Government can use NSLs to seek both day and evening telephone numbers could result in an enumerated harm, especially if it is already publicly known that the Government can use NSLs to obtain a telephone number, more generally.”

The government also sought to block the release of its ability to require the disclosure of “telephone numbers” and instead wanted to allow merely the words “telephone number” — as though anyone would believe that the FBI could only require the disclosure of one point of contact information.

The order’s full contents are listed above. Keep in mind that none of this requires a warrant — just a belief that the information is germane to a terrorism investigation.