Do you know who Nicholas Merrill is? You should. He’s an American hero. Not the kind who died on a battlefield for his country. The kind who, as an average citizen, fought for his rights, and yours, against the full weight of the United States government, and won. Nicholas Merrill is an Internet entrepreneur who, in 2004 ran a startup company called Calyx. He is also the John Doe in John Doe v. Ashcroft who successfully challenged the FBI’s right to issue “National Security Letters”. Why haven’t you heard of him? Because, for six years, he has been under and obeyed a court gag order that he not reveal his identity. Eleven days ago that gag order was partially lifted, and Nicholas Merrill can now speak.
To put this in context the reader needs to know what a “National Security Letter” is. Growing out of the Patriot Act a national security letter allows the FBI to issue a demand, without a warrant or judicial oversight, to any company or individual requiring that company or individual to produce private data on American citizens. The letters also require the recipient to hold the disclosure of that information secret. National security letters can be issued by an FBI field office.
From 2003 to 2006 the FBI issued more than 192,500 national security letters to various companies around the country. In 2007, the Justice Department’s own Inspector General found that the Bureau was consistently failing to adequately justify the issuance of national security letters.
But, while others acquiesced upon receiving the letters, Nicholas Merrill stood up. In Merrill’s case, the government demanded that his company produce sixteen categories of electronic communication transactional records on his customers, including email addresses, billing information and account numbers. The remaining thirteen categories of information that the FBI demanded remain secret, subject to court order and FBI redaction.
Several issues caught Merrill’s attention when he received the letter in February, 2004. He noticed the absence of a judge’s signature and the letter’s demand that he not disclose having received it or its contents. He couldn’t understand the demand for private information on his clients, mostly ad agencies, major companies and nonprofit groups. As he says now,
“I wouldn’t want the FBI to demand stuff like that about me without a warrant. [Customer information from an Internet company] can paint a really vivid picture of many private aspects of their life.”
So Nicholas Merrill became John Doe and sued the FBI. For six years he could tell no one, even friends and family, that he was John Doe. He wasn’t even allowed to sit at counsel table during court proceedings but had to sit with courtroom spectators to hide his identity.
Merrill found early success when, in September, 2004, a Federal District Court ruled that national security letters as then formulated were unconstitutional. Congress quickly amended the law to allow a person or company receiving such a letter to challenge the demands and nondisclosure requirements of the letter. But, that didn’t end Merrill’s quest to keep the Constitution whole. And, in December of 2008 the Federal Court of Appeals found that parts of the amended gag provisions of the national security letter law violated the First Amendment. That court ruled that the FBI would need to prove that disclosure by a letter’s recipient would harm national security if the recipient challenged the gag provision of the letter.
The battle isn’t over. The Obama administration has recently requested new amendments to the law to re-open the door to government access to Internet information on American citizens, including Internet sweeps of email addresses and recipient addresses of electronic communication. The debate continues now in Congress.
So while we await our government’s next move, here’s to Nicholas Merrill, an American hero. Thank you.
Cross posted at Elijah’s Sweete Spot.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.