A Decade-Old Gag Order, Lifted

Nick Merrill's NSL attachment, in various stages of redaction

More than a decade ago, a man named Nick Merrill approached the NYCLU and ACLU with an unusual request for help. At the time, Nick ran a small Internet access and consulting business, called Calyx, in New York City.

A few days earlier, an FBI agent had come by Calyx’s offices and handed Nick a “national security letter” demanding  that Calyx turn over sensitive information about one of its subscribers. The letter included a gag order prohibiting Calyx from disclosing to anyone that it had received the demand. It also included an attachment listing the kinds of information that the FBI wanted Calyx to turn over. 

Nick wasn’t sure why the FBI was demanding the information, but he knew a little about the subscriber the FBI was apparently investigating, and he doubted that the investigation was a legitimate one. He wondered how it was possible that the FBI could demand such sensitive information without the involvement of any judge. And he wondered whether he was violating the gag order simply by asking us for advice.   

We didn’t immediately know the answers to Nick’s questions, because we hadn’t seen NSLs before, either. They’d been around for many years, but before 2001 they’d been used sparingly. In October 2001, though, President George W. Bush signed the USA Patriot Act into law, and among many changes the Act made to the surveillance laws were changes that dramatically expanded the FBI’s authority to issue NSLs. 

One of the first cases I litigated at the ACLU involved a request under the Freedom of Information Act for information about the FBI’s use of NSLs. Among the documents we received in the course of that litigation was this list of NSLs issued by the FBI between October 2001 and January 2003:

NSLs issued by the FBI between October 2001 and January 2003

We didn’t realize it at the time, but this heavily redacted document showed an inflection point in the FBI’s use of the NSL power. 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.

We ended up representing Nick in a challenge to the constitutionality of the NSL statute. The challenge was in many respects successful. The district court struck down the statute in its entirety in 2004, and Congress responded by amending the statute a year later. After we argued that Congress hadn’t addressed all of the statute’s constitutional deficiencies, the district court struck down the statute again. In 2008, the Second Circuit affirmed most of that decision, invalidating some parts of the gag-order scheme and construing other parts of that scheme narrowly. 

But throughout the litigation, the gag order prevented Nick from disclosing that the FBI had demanded information from Calyx and from explaining his concerns about the FBI’s investigation. It also prevented him from publicly identifying himself as the recipient of an NSL. In 2007, Nick wrote an anonymous op-ed for the Washington Post discussing some of his frustrations:

I found it particularly difficult to be silent about my concerns while Congress was debating the reauthorization of the Patriot Act in 2005 and early 2006. If I hadn't been under a gag order, I would have contacted members of Congress to discuss my experiences and to advocate changes in the law. The inspector general's report confirms that Congress lacked a complete picture of the problem during a critical time: Even though the NSL statute requires the director of the FBI to fully inform members of the House and Senate about all requests issued under the statute, the FBI significantly underrepresented the number of NSL requests in 2003, 2004 and 2005, according to the report.

I recognize that there may sometimes be a need for secrecy in certain national security investigations. But I've now been under a broad gag order for three years, and other NSL recipients have been silenced for even longer. At some point -- a point we passed long ago -- the secrecy itself becomes a threat to our democracy.

And the gag order remained in place even after Nick had persuaded Congress and the courts to narrow the NSL statute. It wasn’t until 2010 — six years after the gag order was imposed — that Nick was permitted to identify himself as the recipient of an NSL. Even then, the FBI insisted that Nick not disclose the attachment that listed the kinds of records the FBI had demanded Calyx turn over.   

Now, more than 11 years after the order was imposed, the district court has lifted the gag order in its entirety. (The court’s decision was issued a month ago, but for procedural reasons the gag order was not lifted until today.) Thanks to the work of Dave Schulz, Jonathan Manes, Amanda Lynch, Lulu Pantin, and Rebecca Wexler at the Yale Media Freedom and Information Access Clinic, which has represented Nick now for several years, Nick can finally talk freely. He can also disclose the NSL attachment listing the categories of records the FBI demanded. 

NSLs issued by the FBI between October 2001 and January 2003

I am sure that Nick will have lots to say about his experience now that he won’t be prosecuted for saying it. But as government officials once again press for more surveillance powers, it is worth remembering that, as Nick wrote in his 2007 op-ed, there’s still a lot we don’t know about how existing surveillance powers are being used.

As the ACLU acknowledged in Nick’s case, time-limited and narrowly cabined gag orders may be justified in truly extraordinary cases. But the FBI has imposed effectively permanent gag orders on tens of thousands of NSL recipients. It has withheld crucial documents about the use of other surveillance authorities. And it has abused the state-secrets privilege to prevent courts from considering whether intrusive surveillance authorities are lawful. 

This kind of secrecy prevents the public from learning how the government’s surveillance authorities are used, distorts public debate, shields policymakers from accountability for their decisions, and insulates surveillance powers from judicial review.    

As Nick observed in 2007, we’ve long passed the point at which this secrecy became a threat to our democracy.

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Anonymous

The question should be , why aren't Politicians, Judges & Bureaucrats being prosecuted ! Only after the members of our 3 branches of Government are prosecuted should there be a trial for Mr. Snowden, after all they committed their crimes long before he blew the whistle on them ! ! !

UNITED STATES CODE
TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 13 - CIVIL RIGHTS

§ 241. Conspiracy against rights

If two or more persons conspire to injure, oppress, threaten, or intimidate any inhabitant of any State, Territory, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so secured - They shall be fined not more than $10,000 or imprisoned not more than ten years, or both; and if death results, they shall be subject to imprisonment for any term of years or for life.

§ 242. Deprivation of rights under color of law

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if bodily injury results shall be fined under this title or imprisoned not more than ten years, or both; and if death results shall be subject to imprisonment for any term of years or for life.

"For the purpose of Section 242, acts under "color of law" include acts not only done by federal, state, or local officials within the their lawful authority, but also acts done beyond the bounds of that official's lawful authority if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties,. Persons acting under color of law within the meaning of this statute include police officers, prisons guards and other law enforcement officials, as well as judges, care providers in public health facilities, and others who are acting as public officials. It is not necessary that the crime be motivated by animus toward the race, color, religion, sex, handicap, familial status or national origin of the victim.

Torture is also a crime under International law, the US has signed Treaties to that effect !

Time to hold these CRIMINALS to account, so lets take back America people, it is up to us FOR THE SAKE OF OUR CHILDREN & GRANDCHILDREN !

Wake up people, Democrats or Republicans,Tories or Labor. Liberals or Conservatives it's two sides of the same evil coin it's called Fascism. So the next time a politician asks for your vote, support or money just say no & vote for an independent candidate. Send a message they can't ignore & will understand ! ! Both parties have been complicit in this criminal activity. Democrats & Republicans don't decide elections Independent voters do so now is the time to elect independent candidate ! !

Money in politics equals corruption, reduce the money you reduce the corruption ! We don't need the worst politicians money can buy, we need politicians that money can't buy ! It's time to remove the Corporate Congress from office & take back America !

The whole point is to expose this Election Shame for what it is . We need to divide & conquer Democrats & Republicans instead of them providing the American public with false choices, Its time to remove the Corporate Congress ! !

If you take away their power then you can take away their toys !

The Government will continue its PR & propaganda campaign using the following tactics as quoted by Joseph Goebbels during the 1930's & 1940's.

“If you tell a lie big enough and keep repeating it, people will eventually come to believe it. The lie can be maintained only for such time as the State can shield the people from the political, economic and/or military consequences of the lie. It thus becomes vitally important for the State to use all of its powers to repress dissent, for the truth is the mortal enemy of the lie, and thus by extension, the truth is the greatest enemy of the State.” AND

“The most brilliant propagandist technique will yield no success unless one fundamental principle is borne in mind constantly - it must confine itself to a few points and repeat them over and over”

The following link is a must read ! This is not the Future. This is the here & NOW ! http://1933key.com/US-Empire/US-Patriot-Act-Compared-to-German-Enabling-Act

See also : http://www.washingtonsblog.com/2014/05/spying-meant-crush-dissent-terrorism.html

The supreme law of The USA is the Constitution, not the Patriot act the FISA act, or any other such acts that have unconstitutional provisions,are invalid & it matters not how many public officials say it's legal, it's NOT for the Constitutional Amendments say otherwise ! ! To say it is legal only shows the public their betrayal of the Constitution, their oath of office, and the American people.

No more lies, excuses rationalizations,or justifications, the public needs to hold these officials to account to the fullest extent of the law under Title 18 sec. 241 & 242 So any future traitors will know there will be consequences to such behavior. I hope the other five eyed nations have equivalent laws, but if not maybe it's time to get some. Better late than never.

Don't blame Snowden or the Press for the actions of NSA & GCHQ & our Governments, they are the ONLY ones responsible for the crimes they have committed ! ! ! See USC Title 18 Sec. 241 & 242 (Above). So why no arrest warrants for high crimes, but only for misdemeanors ? ? ?

High crimes = NSA + GCHQ + PUBLIC OFFICALS OF THE UK & US ! ! !

Misdemeanors = Snowden, Manning, Assange, lAVABIT

REMEMBER: POLITICIANS, BUREAUCRATS AND DIAPERS SHOULD BE CHANGED OFTEN AND FOR THE SAME REASON.

Some word of true Patriots are as follows, as opposed to the words of false flag patriotism of today.

He that is of the opinion money will do everything may well be suspected of doing everything for money.
Benjamin Franklin

He that is good for making excuses is seldom good for anything else.
Benjamin Franklin

Experience hath shown, that even under the best forms of government those entrusted with power have, in time, and by slow operations, perverted it into tyranny.
Thomas Jefferson

Tyranny is defined as that which is legal for the government but illegal for the citizenry."
Thomas Jefferson.

Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add 'within the limits of the law' because law is often but the tyrant's will, and always so when it violates the rights of the individual.
Thomas Jefferson

In framing a government which is to be administered by men over men you must first enable the government to control the governed; and in the next place oblige it to control itself.
James Madison

Liberty may be endangered by the abuse of liberty, but also by the abuse of power.
James Madison

The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.
Patrick Henry

"We the People are the rightful masters of BOTH Congress and the Courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution"
Abraham Lincoln

America will never be destroyed from the outside. If we falter and lose our freedoms, it will be because we destroyed ourselves.
Abraham Lincoln

We should not forget the warning of President Eisenhower . It has become the here & NOW !
https://www.youtube.com/watch?v=vLqWfWxqh_0
The NSA is controlled & operated by the DOD & the MIC (Military Industrial Complex) Private Corporations.

"The very word "secrecy" is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths and secret proceedings. We decided long ago that the dangers of excessive and unwarranted concealment of pertinent facts far outweighed the dangers which are cited to justify it."
President John F. Kennedy
Waldorf-Astoria Hotel
April 27, 1961

As a reminder Hermann Goering said at the Nuremberg Trials .
"The people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."

As is said in the law, falsus in uno, falsus in omnibus. ("False in one thing, false in all things" is an instruction given to jurors: if they find that a witness lied about an important matter, they are entitled to ignore everything else that witness said.)

Time to start removing the corporate Congress from office & defunding the NSA to force them to comply with the law & impose jail time for non compliance under USC Title 18 Sec. 241 & 242 (Google it) or see above .

“Fascism should more appropriately be called Corporatism because it is a merger of state and corporate power.”
Benito Mussolini

The short version of the above is as follows:
Any Government or Party that doesn't abide by the Constitution does not deserve our respect or support ! ! ! They are traitors !

Unaccountable power is absolute power, & is absolutely corrupt !

Disclaimer: Be advised it is possible, that this communication is being monitored by the
National Security Agency or GCHQ. I neither condone or support any such policy, by any Government authority that does not comply, as stipulated by the 4th Amendment of the U.S. Constitution.

Anonymous

Have you heard the internet phrase Too Long; Didn't Read (TL;DR)? Economy of words is a virtue.

Demosthenes

A tip for you: these kinds of posts are common. Really long posts, with massive quotes, with some wake up people sprinkled in. No one reads these past the first paragraph if at all. If you want to reach people, come up with something articulate and succinct.

CMR

Very good story. More people should know this. Thank you.

Anonymous

The Beatles warned us about this, https://youtu.be/BGLGzRXY5Bw

Anonymous

Why isn't the fully readable version available in the article? A low resolution image that is unreadable doesn't really help shed light on what was in the NSL that was so hard fought to reveal.

abbadabba

Click the underlined text for both the letter and the attachment in the story.

Anonymous

There is no equivocation in the 4th Amendment!

Joe the Voter

"State Secret" is another term for "Let's enslave the people" We have a Congress who simply does not care about our Constitution even when the evidence is made clear by the courts that their intention violates their oat to uphold and defend that document.

Since Congress no longer represents the people ( except the wealthy donors ) the rest of us are effectively screwed when it comes to our constitutional rights. Who do you contact for a "redress of grievance" when your letters and calls go in the circular file somewhere in DC?

http://joethevoter.org

Ronald Wayne Parsons

I was taken aback when I followed this link to the “ACLU” website thinking I was going to find a news agency’s story. The first thing that happened was a request for a donation. I have a statement that will more than likely be deleted or even edit out much like the images in this story. In 2003 I was playing music as a street musician traveling around the country and feeding homeless people. One thing I always did when entering a town was go to the city offices and make sure that there were no city ordinances that I would be breaking. I found myself in a town just outside of Little Rock AR. And had drawn a nice size crowd of about 35 people. I was approached by two officers and told to pack my stuff up and move along. While the crowd peacefully voiced an objection to them, I cited that I had been to the city office and was well within the law. The lead officer stated in front of witnesses that, “If I didn’t comply with his orders he would pack me up and take me out into the country and disappear me. And I would never be heard from again”. As I packed up I collected names and phone numbers from witnesses that said they would testify in my behalf. A few days later I contacted the AR. Branch of the A.C.L.U. and finally was able to speak to the Director who told me and I quote… “Unless you are black or your story will make the National News we will not help you”. I have not left a donation here (while prior to the incident I use to donate to them often) and I refuse to read the article due to the discrimination and Prejudice at the hands of the “A.C.L.U.”…

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