ISP Owner Who Fought FBI Spying Freed From Gag Order

Tootech writes "So you wonder what happens when an ISP recieves a a so-called 'national security letter' from the FBI? Well, read this about an ISP owner's fight to not have to turn over everything and the sink to the FBI: 'The owner of an internet service provider who mounted a high-profile court challenge to a secret FBI records demand has finally been partially released from a 6-year-old gag order that forced him to keep his role in the case a secret from even his closest friends and family. He can now identify himself and discuss the case, although he still can't reveal what information the FBI sought. Nicholas Merrill, 37, was president of New York-based Calyx Internet Access when he received a so-called "national security letter" from the FBI in February 2004 demanding records of one of his customers and filed a lawsuit to challenge it.'"

Comments

Troubling

[mcgrew]

Despite the fact that the FBI later dropped its demand for the records, Merrill was prohibited from telling his fiancée, friends or family members that he had received the letter or that he was embroiled in a lawsuit challenging its legitimacy. He occasionally showed up for court hearings about the case, but sat silently in the audience with other court observers. In 2007, he was prevented from publicly accepting an award for his courage from the American Civil Liberties Union, because he was not allowed to identify himself as the plaintiff in the case.

So much for the first amendment. I'd have posted it all to slashdot, written letters to editors, harrassed my congresscritters, and gone to jail.

Free country, my ass. You no longer have freedom of speech.

Re:Troubling

[Shakrai]

So much for the first amendment. I'd have posted it all to slashdot, written letters to editors, harrassed my congresscritters, and gone to jail.

Or you could be a little bit smarter about it and send it to a news outlet and/or wikileaks.....

Re:Troubling

[spun]

Freedom of speech has always taken a backseat to the notion of national security, even when it is a false notion. This isn't new, but the amount of security we are told we need seems to have increased dramatically.

"Liberty, Security, Empire: pick any two," we used to have liberty and security, now we have security and empire, but our empire sure doesn't seem to be doing anything for the average citizen.

Re:Troubling

[Hatta]

What good is it to be able to say "fuck the government" if you can't say "fuck these agents, from this branch of the government, for this specific action"?

Re:Troubling

[Shakrai]

We don't have an "empire" and free speech has always been something that can be curtailed for an ongoing criminal investigation. National Security really doesn't have anything to do with it. When I was in the ISP business I learned that it's illegal in New York State to tell one of your customers that he's the subject of a electronic surveillance warrant. Are you going to claim that's an infringement on free speech?

This law isn't troubling because the ISP owner can't tell the public about the NSL. It's troubling because he can't even tell his own lawyer. If the law is found to be unconstitutional that will be the reason why.

Re:Troubling

[Lunix Nutcase]

And yes, those acts were repealed, but it just goes to show that the 1st Amendment has taken a backseat to government interest since pretty much the beginning.

Re:Troubling

[schon]

They might suspect that but proving it in a Court of Law is an entirely different matter.

And as we all know, if it's impossible to prove in court, they won't ever arrest you and destroy your business.

Oh, wait...

Re:Troubling

[spun]

Yes, we do have an Empire. We have colonies and military bases all over the world. We have intervened in dozens of country's internal politics. We have waged wars of aggression and toppled democratically elected leaders like Salvador Allende.

A good place to start is the wiki article on American Imperialism, which is obviously horribly slanted if you think no such article should exist because no such thing exists, but you will find a lot of people all over the world strongly believe that not only does American imperialism exist, it has killed someone they know. Even if you don't think any such thing exists, it might be enlightening to you to research just what it is that all these people are calling 'American Imperialism."

Re:Troubling

[mcgrew]

free speech has always been something that can be curtailed for an ongoing criminal investigation.

Yes, but there was always judicial oversight -- if a law enforcement agency wanted your records, they had to go to a judge and have a warrant issued. These letters need no warrant, despite the fact that the Constitution says "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

TFA is, as I said, quite troubling. The fourth amendment has lost all meaning, as well as the first, which reads "Congress shall make no law... abridging the freedom of speech".

When I was in the ISP business I learned that it's illegal in New York State to tell one of your customers that he's the subject of a electronic surveillance warrant. Are you going to claim that's an infringement on free speech?

No, because that looks like a judge has to issue a warrant. No judge's warrant is required for the FBI. From TFA:With an NSL, the FBI does not need to seek a court order to obtain such records, nor does it need to prove just cause. An FBI field agent simply needs to draft an NSL stating the information being sought is "relevant" to a national security investigation...

The gag orders raise the possibility for extensive abuse of NSLs, under the cover of secrecy. Indeed, in 2007, a Justice Department Inspector General audit found that the FBI, which issued almost 200,000 NSLs between 2003 and 2006, had abused its authority and misused NSLs.

Re:Troubling

[RAMMS EIN]

Personally, I haven't really believed there is freedom of speech in the United States ever since I heard about free speech zones.

I first heard about free speech zones in an article about how protesters against G.W. Bush were directed to free speech zones that were far enough away from where Bush would be passing that he, his supporters, and other onlookers would not be able to hear them. Apparently, free speech zones predate G.W. Bush's government, though.

I'm not sure how useful free speech is if you can only exercise it where nobody who doesn't already agree with you will hear it.

Re: Troubling

[spun]

now we have security and empire, but our empire sure doesn't seem to be doing anything for the average citizen.

Did empires ever?

Oddly enough, they have not. You'd think the average citizen would have learned that by now, but having a winning empire is a bit like having a winning sports team: even if you're a big fat loser who never played any sport, you can take pride in the fact that someone you identify with is kicking the ass of someone you've decided not to like.

Re:Troubling

[Shakrai]

Yes.

That's absurd. Leftists are so fond of making the "fire in a crowded theater" analogy when it suits them (typically in conversations about infringements on the 2nd amendment) but now you claim the 1st amendment is absolute? It's not illegal to shout "fire!" -- it's illegal to do so in a manner that endangers public safety (see reckless endangerment laws). Likewise, it's not illegal to publish a letter that you received from law enforcement -- but it is illegal to interfere with an ongoing investigation (see obstruction of justice laws)

I really don't see the 1st amendment issue here. The NSL law is troubling for other reasons (prohibition on seeking legal advice) but not because you can't disclose the letter while the investigation is still ongoing.

Re:Troubling

[RAMMS EIN]

Forgot to add:

On the other hand, I am pleasantly surprised about how much vocal criticism there is in the USA. Living in the Netherlands, I hear and see more criticism and discussion of American policy than of Dutch policy. You're doing something right over there that we're doing wrong over here. Criticism and discussion are good, because only through them can you arrive at better decisions.

Re:Troubling

[commodore64_love]

Read the article:

"In Merrill's case, although the letter's gag order "was totally clear that they were saying that I couldn't speak to a lawyer" about it, he immediately contacted his personal attorney, and together they went to the ACLU in New York, which agreed to represent him. "My gut feeling is I'm an American," Merrill said, in an interview with Threat Level on Tuesday. "I always have a right to an attorney. There's no such thing as you can't talk to your attorney."

This guy wasn't allowed to defend himself with a professional lawyer.
Clearly that is NULL according to both US and NY Constitutions.
And Supreme Court ruling (see the movie Gideon's Trumpet).

Re:Troubling

[spun]

The bases are not all there at the behest of current local governments, we have ongoing treaties dating back to WWII that they can not break without serious repercussions. As for colonies, Puerto Rico, Guam, the Marianna Islands, the US virgin Islands, American Samoa, are all official colonies, but I consider Iraq to be a colony, too, in that we have extracted billions of dollars in natural resources that remain unaccounted for.

Re:Troubling

[duppyconqueror]

Let's not forget Mosaddegh "Mohammad Mosaddegh...was the democratically elected[1][2][3][4] Prime Minister of Iran from 1951 to 1953 when he was overthrown in a coup d'état backed by the United States Central Intelligence Agency."

Re:Troubling

[Shakrai]

Yes, the NSL law is loathsome. I've never disputed that. I even responded to mcgrew earlier and suggested that I might be inclined to leak the letter to Wikileaks if I received one.

All I'm saying is that there isn't a 1st amendment issue when you prohibit a service provider from telling their customer that he's under surveillance. Interfering with an ongoing criminal investigation is obstruction of justice. That's been illegal since the Common Law (i.e: it predates the United States of America) and has never been ruled to be unconstitutional.

There is a 5th amendment issue here when the service provider is denied the right to confer with his attorney. There is a 4th amendment issue here when the subject of the NSL is denied his right to have a warrant issued before having his communications intercepted. I'm just not seeing a 1st amendment issue though.

Re:Troubling

[Monchanger]

American interference in other sovereignties is not equal to maintaining an empire over them. That's an exaggeration made by people who can't find a proper way to explain their grievances.

Nations have long sought to influence and interfere with their neighbors. Spying, inciting unrest, sabotage, assassination- none of these were invented by the USA.

Empires expand to tax and pillage. The US actually gives money to other nations to get them to do what we want. Maintaining military bases is objectionable, but still doesn't count, if for no other reason than different bases are maintained for different reasons requiring different definitions and arguments.

I'm as against American Exceptionalism as the next guy, but pulling the simplistic empire card as if we're equivalent to the British, the Ottomans and the Macedonians is intellectually dishonest.

Re:Troubling

[spun]

Thanks for the rhetoric, Mr. Ayers. It's a shame you didn't set off more bombs in your heyday, eh? We could have had the socialist utopia you crave without having to assume this faux image of respectability.

I'm continually surprised by what passes for argumentation among conservatives. Petty snark, affronted whining, thoughtless jingoism, blatant fearmongering: it's no wonder that the majority of citizens find your positions puerile.

We're trying to have a grown up conversation here, if you can't act like a grown up and present your thoughts in a rational manner, you should go back and sit at the kid's table.

Re:Troubling

[mean pun]

And yet, you have the freedom to say what I just quoted without being thrown in some secret prison.

No police state is ever absolute. Even in the former DDR (in my limited knowledge the freakiest control freaks yet) you were able to get away with some things.

The fact remains that for six years someone was threatened with prison (secret or not) for simply telling someone that he'd been asked questions by the FBI. Surely that is cause for worry? It makes it far too easy to abuse the system, and the US three-letter agencies do not exactly have a spotless record with respect to abuse of the system.

Of course you also have to wonder how many similar cases there are that are still under a gag order, and whether there are even worse ones.

Re:Troubling

[thoromyr]

I know of at least one US military base that is officially there "at the behest of the local government". The local government has different ideas, depending on which official you ask.

The truthful answer is a bit more complicated, going along the lines of: they don't want us to have a military base in their country, but they *do* want something else and we used that as leverage to force the military base on them.

Saying that base is there "at the behest of the local government" is plain inaccurate. Saying that the local government permitted it under duress would be closer.

Re:Troubling

[spun]

You are an idiot. Plenty of countries have 'voluntarily' accepted the yoke of empire, but that doesn't mean it's any less of an empire.

Re:Troubling

[Shakrai]

Civil disobedience is not a free activity. Sometimes it's worth paying the price for standing up for what you believe in. Rosa Parks was found guilty and assessed a fine. Does that mean she shouldn't have done what she did?

Re:Troubling

[suomynonAyletamitlU]

IANAL or constitutional scholar, but the FBI is I believe part of the executive branch, where the consitution and the first amendment in particular is aimed at the legislature: "Congress shall make no law"

It is the legislature's responsibility to reign in the executive (as well as the populace) by passing laws. it is not going to be stopped by laws that do not exist, and the First Amendment does not seem to be censuring, forbidding, or stipulating punishment for acts of the executive branch which amount to censorship.

Therefore, I believe, this isn't a constitutional matter unless the executive has been given guidelines in the form of laws that specifically allow it. If it is merely that it hasn't been restrained, it cannot possibly fall under the jurisdiction of that amendment. As you say, it is pretty clearly worded.

If you have a beef with particular laws that are dictating first amendment violations, mention them, and move to have them changed. THAT is what the judicial branch, and specifically the supreme court, is for.

Re:Troubling

[Teun]

Of course you also have to wonder how many similar cases there are that are still under a gag order, and whether there are even worse ones.

I don't have to wonder.

And I'm sorry to say so.

Re:Troubling

[mcgrew]

A line from a Who song comes to mind; corporations have guns that fire cops. The government has become big business' bitch, and government does what big business tells it to. I at least have a vote with the government, however meaningless that vote may be, but I have no control whatever over any corporation.

If the President of GM wants you in prison, you'll go to prison. Their hired thugs are called "policemen".

Re:Troubling

[Khisanth Magus]

A fine is different from 5 years in jail when you have a family to support.

Re:Troubling

[fishexe]

Did you really just cite a movie as a reference?! It's not that hard to cite the actual case, after all.

We're Americans (mostly). We won't look up the case, but we might watch the movie. So which is a better way to get the point across, cite something we'll look up or something we won't?

Re:Troubling

[Lunix Nutcase]

Corporations don't have the power to send armed agents to kick in my door and slap handcuffs on me.....

The easy to find FBI raids on behalf of software, record and movie companies speaks to the contrary. They very much do have the political power to get armed agents to kick in your door and arrest you.

Re:Troubling

[Jawnn]

>>>the FBI will have known it was he who leaked the info.

And people wonder why I fear Government more than GM, microsoft, RCA or other corporations. It should be obvious.

I don't wonder. You're obviously one of the many who have forgotten, or quite possibly never even learned, that "We The People are our government. Yes, I will readily stipulate that We have been more than a bit derelict in our duties as citizens and allowed GM, Microsoft, RCA, et al to gain status equal to our own and with that in hand, influence all out of proportion, but if We were to wake the hell up and and toss out the corporate lackeys we've "elected" and elect representatives who will promise to represent the interests of the citizens and to make the changes (Supreme Court and/or Constitutional Amendment) that would guarantee that, we could regain control of our government and have it serve us once again.

Yes, it occurs to me how much that sounds like the rant of a Tea Bagger. The difference is that for all their bluster about wanting their country back, they have, for the most part, aligned themselves with a group that is most likely to betray them in favor of GM, Microsoft, BP, et al, pissing all over The Constitution in the process.

So whether it be through ignorance or apathy not much is likely to change, but if you don't like what's happening, if you truly "fear" your government, you have only yourself and your fellow citizens to blame for allowing such a thing to come to pass.

Re:Troubling

[The Spoonman]

Well, that of course excludes Coca-Cola who assassinated union leaders in Columbia, or Chevron who hired a private militia in Nigeria to fire on protesters outside their plant or DeBeers who fund private armies to protect their diamond monopolies, or...yeah, who am I kidding, facts never change the mind of a zealot...

Re:Troubling

[tqk]

If the President of GM wants you in prison, you'll go to prison.

Citation needed.

Would you accept a parallel example:

http://en.wikipedia.org/wiki/United_Fruit

Not that I consider GM equiv. to UF (I like Chevy's), but the potential's always there.

Re:Troubling

[future assassin]

>A fine is different from 5 years in jail when you have a family to support.

My mom and all her friends did that in Poland in the early 1980's. She was eventually kidnapped from in front of our house, interrogated, beaten black and blue and sent to a special prison in Goldap Poland http://www.google.ca/search?hl=en&q=Goldap+Poland+prison&aq=f&aqi=&aql=&oq=&gs_rfai=

Actually my aunt, my moms sister who was also arrested around the same time got the worst of the beatings with full fists of heir missing from her head.

My mom also took me to this riot http://www.lubin82.pl/index_eng.html

She did what she had to do to stop tyranny and oppression.

Eventually the gov realized it would be much easier to just let all political activists emigrate where ever they wanted to. We came to Canada while her other friends ended up in the places like the USA and South Africa.

Re:Troubling

[Archangel Michael]

That is because "WE" have let a small group (Judges) define Corporations (Creations of the State) as having the same "Rights" as Persons.

Hear me very carefully. WE the PEOPLE need to get together and tell the government (by CONSTITUTIONAL AMENDMENT) that non-citizen entities (Corporations) are not afforded ANY rights as "persons". NONE. They are granted PRIVILEGES only, including their own existence, and violation of those privileges will result in increasing penalties, including the "corporate death penalty", whereby their corporate charter is revoked and stock holders lose everything.

Re:Troubling

[pugugly]

Ah - Prop 8 is proof that, having voted to extend certain rights equally among all citizens and legal residents of the United States, we don't get to vote that we only meant that for people we liked.

That being, y'know, the whole reason for the 14th amendment and all. Which our duly appointed representatives made part of the supreme law of the land.

And Glenn Beck now wants to repeal.

Pug

Yeah.

[TrisexualPuppy]

An old buddy of mine works at the FBI. He says that these demanding letters come in all shapes and forms, are frequently quite illegitimate, and are becoming more and more widely spread.

Basically, the FBI is doing what the MAFIAA do--they know that they're the big boys with power and money and will go against you whether you're right or wrong because nearly no one will fight.

Re:Yeah.

[Ironhandx]

Ah, I wish I still had mod points.

It reminds me of a story about a Canadian who refused to cooperate with the FBI and had the FBI officer argue with him until he was blue in the face that the man had to cooperate with them and it was illegal to do otherwise.

To be fair though the FBI can just put a request through proper channels and the RCMP can go get whatever they needed. It is illegal to be uncooperative with the RCMP in Canada. Its funny how often the FBI thinks they can just do whatever they want and bypass all of the regs though.

Re:Yeah.

[TrisexualPuppy]

So your buddy is allowed to talk about them with people outside of the bureau (presuming you don't work for them too), but those that receive them aren't?

Yes, we were discussing policy. He can talk about policy all day long but by no means is he allowed to talk to me about specific cases.

Re:Yeah.

[elrous0]

Unregulated power *always* invites abuse. If an FBI agent knows he can just use one of these letters without needing to prove anything to court and that he will never have to answer for it, why *wouldn't* he use it for everything? I would be surprised if they even bothered with warrants at all anymore (except in high-profile cases that might invite media scrutiny).

Bet this guy was VERY exceptional

[elrous0]

For every ISP like this who stood up to the feds, I wonder how many just caved and put their own business interests ahead of the civil rights of their clients?

Re:Bet this guy was VERY exceptional

[ink]

Unfortunately, there's no way to know with these "gag orders" in place. Even if some piece of information is needed for national security reasons, it should be subject to speedy judicial review after the fact -- otherwise, there is no mechanism to identify abuse.

Re:Bet this guy was VERY exceptional

[commodore64_love]

>>>it should be subject to speedy judicial review after the fact -

BEFORE the fact. Warrants are supposed to be issued by judges, not police, and while under oath. These warrants the police are issuing without involving the courts are unconstitutional.

Power

[Anonymous Coward]

I agree 100%, but what this really is is yet another reminder that political power cannot be fought. Political power is the special right to employ physical force as a means to an end. Nobody holds that special right except for government. That one special right is, in fact, what defines government and seperates government from everybody else.

Why am I going on about this? Because that one special right is the most dangerous thing in the world, and for this reason it MUST be strictly limited. Think twice about cheering for more and more government along with the masses. Remember that we are already living under the most expensive, most powerful government this world has ever seen. If you advocate more government on certain matters, AT LEAST consider that the power you advocate should be re-allocated from other parts of government which are over-powered (and there are many), rather than created out of thin air. All too often I see people on slashdot cheering for yet even more government, without even giving consideration to the fact that they are already subject (if they live in the US) to the most powerful empire in history, with military bases in over 150 countries around the world.

They already have enough power. They already have enough revenue. In fact, they have way too much of both, and that is why the level of injustice is increasing, not decreasing, over time.

Prez!

[natehoy]

Nicholas Merrill for President... of Comcast, AT&T, Verizon, etc!!!!

Who's with me?

be smarter still-The Santa Cruz method

[way2trivial]

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2003/03/10/LIBRARIES.TMP
"In Santa Cruz, where library officials are trying to stir up patrons about the Patriot Act, chief librarian Anne Turner has found a more subtle way to sidestep the gag order, if she ever faces one.

"At each board meeting I tell them we have not been served by any (search warrants)," she said. "In any months that I don't tell them that, they'll know."

Yeah! National security! For our own protection!

[Benfea]

It's for our own protection, comrade! If you disagree with this, that means you're with the capitalists and against Mother Russia! We know how to deal with uppity citizens who refuse to cooperate with the KGB!

No offense, but our government has such a track record of claiming "national security" when it is anything but that I am inclined to not believe them when I hear those words. Half the time, it turns out to be our freedoms being curtailed for purely political reasons (either to cover someone's @ss or to harass an enemy). And you know what? Every totalitarian government uses that claim (or something similar) when they run roughshod over the rights of their constituents.

The Soviets were protecting their people from capitalist spies, capitalist saboteurs, and other unsavory "anti-revolutionary" types. The Nazis were protecting their people from Jews, gypsies, communists, homosexuals, union members, etc., etc. For our government, the boogeyman changes from time to time (drug dealers, terrorists, immigrants, etc.), but the purpose is the same. Your problem is that you've obviously fallen from the boogeyman scare tactics and failed to see it for what it is, and your reaction is exactly what those peddling fear could have hoped for.

Anyone who is trying to sell you something using fear is up to no good, or they would not have to resort to such tactics. We have a certain tradition in this country, and letting the government do whatever the hell they want as long as they use the magic words "national security" or "for your own protection" is not part of that tradition.

A Solution?

[karcirate]

Here's what you do when you get one of these letters:

1) Deny that you have any of the records they are looking for.
2) Make sure that data (which you do have) is seriously protected.
3) They have no way to get the data from you now without either:
a. arresting you for not complying - in which case their secrecy is blown, so they won't do that
b. getting a court ordered warrant - in which case their secrecy is blown, so they won't do that
c. Getting all sneaky and stealing the data - see #2
d. Totally screwing you over and destroying your life - in which case their secrecy is blown because once your life is destroyed, you have nothing to lose by revealing the letter, so they won't do that
4) Dance

Re:A Solution?

[evilviper]

1) Deny that you have any of the records they are looking for.

Lying to the FBI is a crime.

If you don't mind going to jail, sure, you have LOTS of options. He could have just ignored the gag order and blabbed about it everywhere.

Court?

[Paracelcus]

you mean a show trial? How about "Special Administrative Measures" where you just disappear, never to be heard from again (except for some faint screaming from a Pakistani prison!

Re:this is true

[zogger]

that site is OK. Google around, do your own research. Here, I found this just searching for that title in quotes:

http://tmh.floonet.net/articles/cia_press.html

Now think about modern day "embedded reporters". They won't be embedded very long if they don't pump out the official party line. That's just as corrupt, IMO. And if they aren't embedded, they just kill them, you must have seen that video of the apache video game gunner wasting those reporters and the civilians who stopped to help them. That's what militaries do to non tame reporters now, kill them if they feel like it. All belligerent/aggressive/totalitarian nations do it to reporters. You are on the payroll sub rosa or even above board, parrot the party line or disseminate the "big lie" disinformation, or you are a target they will get around to eventually if they feel like it, chose one.

Here ya go, another

http://en.rsf.org/