After eleven years, the FBI’s efforts to conceal its warrantless perusal of private citizens’ internet data have finally been exposed.
Nicholas Merrill, founder of Calyx Internet Access, has been fighting for the right to tell his story for over a decade. In 2004, Merrill received a National Security Letter (NSL) from the FBI. These letters allow the FBI to conduct electronic surveillance without court approval. While these letters have been utilized by the FBI since the 1970’s, the Patriot Act has brought with it a broad expansion of their use. They are usually accompanied by an open-ended gag order in order to prevent anyone from disclosing the content of the demands made.
As a result of Merrill’s bold refusal of the FBI’s demands, we now have a glance into the secretive and opaque use of NSLs in relation to private data transmitted by our internet service providers. When a federal court ruled that the gag order be lifted, what lay underneath was a blatant example of the lack of judicial oversight and transparency that the FBI has used to target even those not suspected of any crime.
The information that the FBI gathers includes full accounts of internet activity, as well as complete purchase histories. That information can also be correlated to “StingRay” cell-site devices, though the FBI claims that they no longer use the NSLs for location information.
While the Federal Bureau of Investigation claims that it does not know the specific number of National Security Letters used every year, they number in the thousands. Between 2003 and 2011, over 400,000 NSLs were issued. At one point, there were over 50,000 of these quietly unconstitutional demands issued annually.
Towards the end of the battle, Yale Law School’s Media Freedom and Information Access Clinic represented Merrill. Amanda Lynch, one of the members of the Clinic, said that “the public must know how the government has construed the surveillance authorities it already has before it can amend them.”
Merrill isn’t alone. Two other providers are suing over the use of National Security Letters, represented by the Electronic Frontier Foundation. According to attorney Kurt Opsahl, the EFF is “working hard to lift this unconstitutional gag and end this travesty.”
Perhaps Nicholas Merrill himself sums the situation up best: “I mean, why wouldn’t the FBI get whatever it can since all it costs is one sheet of paper.”
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