National Security Letters (NSL) are one of the most controversial aspects of national security investigations. NSLs are administrative subpoenas issued by law enforcement agencies without requiring a judicial order in the United States. NSLs also contains gag orders to prevent the target of the NSL from publicly revealing what information they have handed over to government agencies. The existence of NSLs was already public knowledge, what was unknown is exactly what information was being gathered by using them.
Nicholas Merrill, owner of the now-defunct ISP Calyx, is now able to reveal what sort of information the FBI requested from his company back in 2004. It took an 11 year legal battle, but a judge finally lifted the gag order since the FBI could not make a compelling case regarding the harm that would be caused by publicly revealing the information.
Merill made public an attachment to the NSL he received, which includes a long list of information the FBI was seeking about one of Calyx’s customers. The FBI was seeking detailed account and billing information, as well as a list of email addresses, screen names and other online aliases used by the account. The FBI also requested information on any online orders and purchases made by the account.
A legal intern who represented Merill warned of the serious danger of NSLs, “The broad scope of the FBI’s claimed NSL authority is deeply problematic because the government can issue NSLs without any judicial oversight. Mr. Merrill’s experience demonstrates the FBI indefinitely silences Internet Service Providers while forcing them to de-anonymize their users and divulge a broad range of information about law-abiding citizens’ online activity, simply by issuing a letter.”
This is the first NSL attachment revealed since the FBI started issuing them in 2001, and Andrew Crocker, staff attorney at the Electronic Frontier Foundation, states the importance of this revelation, “On one level, this is a very big deal. This is the first NSL attachment that has been unsealed and the FBI issued 300,000 since 2001. That’s a lot to be issued without seeing even one attachment. We get to see the scope of what the FBI could get with a NSL since 2004. It’s since then been reined in, and the scope is a little bit narrower. But it’s a big deal to see the breadth of what they thought they could get back then.”
Despite hundreds of thousands of NSLs being issued, there have been only a handful of legal challenges, which Crocker argues is indicative of a power imbalance, and that companies are intimidated by the FBI. There are still thousands of NSLs issued each year and Crocker states that its important to keep fighting them in court.
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