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Signed, Unsealed and Stay Tuned

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January 10, 2011

Over the weekend, the Internet was buzzing with the revelation that the government had obtained a court order requiring Twitter to provide information about some of its subscribers who are associated with WikiLeaks. The court order was made public only after Twitter successfully took action to unseal it and notified its clients whose records were at stake.

As the New York Times' Noam Cohen points out, this isn't noteworthy because the request was unusual — in fact, these secret government requests are far more common than the few you've heard of. It's unusual because the request became public.

In 2004, for example, the ACLU filed a lawsuit challenging the FBI's authority to demand records through National Security Letters (NSLs) and to gag NSL recipients from discussing record demands. The suit — the first of its kind — was brought on behalf of a "John Doe" Internet Service Provider that had been served with an NSL and had been prohibited from disclosing — to anyone — that the FBI had demanded the records relating to his clients. Even though the government eventually dropped the request, John Doe remained gagged from telling anyone that he had even received it.

The challenge was highly successful – it resulted in numerous court rulings finding parts of the NSL gag statute unconstitutional. As a result of a settlement agreement, "John Doe," a.k.a. Nicholas Merrill, is finally able to publicly identify himself and to state that he did indeed receive the records requests from the government.

Merrill brought the first challenge to an NSL gag order, and a few more followed. But as far as we know there are no current pending challenges to NSLs, despite the fact that the FBI's general counsel says the program has "ticked up" in recent years.

Twitter, Nick Merrill and the other brave few who have stepped up to challenge the government's secret requests for their users' private records should be commended. And others should follow suit.

As the ACLU's Aden Fine said in our statement on Saturday:

Twitter should be commended for moving to unseal the court order, but we are very troubled that the order was filed under seal in the first place. Except in truly extraordinary circumstances, Internet users should receive notice, and an opportunity to go to court to defend their constitutional rights, before their rights are compromised.

We'll have more as this story develops.

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