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

[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

[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

[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

[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

[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

[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

[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

[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.

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.

[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.

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?

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."

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