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Just What Were FBI National Security Letters Looking For?

By Casey C. Sullivan, Esq. | Last updated on

Over a decade ago, Nick Merrill was approached by an FBI agent with a "national security letter" demanding information about his Internet company's users. Merrill was the owner of a small New York ISP, Calyx Internet Access, and national security letters were the once ubiquitous administrative subpoenas compelling disclosure of user records. NSLs, like the one Merrill received, are issued without judicial oversight and almost always contain gag orders, prohibiting the recipient from even acknowledging that a NSL has been received.

Now, after 11 years with his lips involuntarily sealed, Merrill has finally gotten his NSL gag order lifted. So what was the FBI looking for, anyway?

The Heyday of NSLs

There are two main objections to the government's NSL program. The first was the lack of judicial oversight. Since the Supreme Court had ruled that the information the FBI obtained in NSL wasn't protected by a reasonable expectation of privacy, the FBI was not required to obtain a warrant beforehand. The second main objection was the gag orders. Not only were recipients of an NSL not allowed to publicly share what type of information the letters demanded, they could not even acknowledge that they received one. When Merrill and the ACLU sued over the gag order, for example, Merrill had to be listed as a John Doe.

That meant there was little way the public could know the true extent of the program. And it was extensive. Though NSLs had been around for a while, the PATRIOT Act greatly expanded their use. According to the ACLU's Jameel Jaffer:

Behind a veil of secrecy, and relying on changes made by the Patriot Act, the FBI began issuing hundreds of NSLs demanding credit reports, banking information, or records relating to Internet activity. Some of the NSLs sought information about terrorism suspects, but most sought information about people who were one, two, three, or more degrees removed from anyone suspected of having done anything wrong. According to the Justice Department's inspector general, the FBI issued a staggering 143,074 NSLs between 2003 and 2005. And every NSL was accompanied by a categorical and permanent gag order.

Give Us Almost Everything You Got

Merrill was one of the first people to publically speak out against the program. Merrill and the ACLU sued, challenging the NSLs as a violation of his First Amendment rights. They won in district court, the statute was amended, then they won again. All the while the gag order was in place. Now, after a 2014 suit by Merrill and Yale Law School's Media Freedom and Information Access Clinic, that gag order has finally been lifted, allowing Merrill to disclose the contents of his NSL.

In short: the FBI wanted everything, almost. Here's what the NSL requested, according to The New York Times:

  • All physical mail addresses, email addresses, and IP addresses associated with the user's account;
  • Telephone and billing records;
  • Anything that could be considered an "electronic communications transactional record;"
  • The account's "radius log," including "cell-tower-based phone tracking information."

The letter also told Merrill to exclude any communications between the customer and others.

So, sort of what you would expect. It's a massive amount of information the FBI wanted, especially knowing that NSL's were often used to gather intelligence on individuals far removed from the War on Terror.

Merrill's is just the first of what will probably be many NSLs disclosed in the future. In January, the Director of National Intelligence, under directions from President Obama, declared that the FBI "will now presumptively terminate" the gag orders after three years.

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