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ISP Owner Who Fought FBI Spying Freed From Gag Order 404

Posted by timothy
from the free-to-move-about-the-prison dept.
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.'"
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ISP Owner Who Fought FBI Spying Freed From Gag Order

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  • Troubling (Score:5, Informative)

    by mcgrew (92797) * on Thursday August 12, 2010 @01:52PM (#33230292) Homepage Journal

    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 (Score:5, Insightful)

      by Shakrai (717556) * on Thursday August 12, 2010 @01:54PM (#33230310) Journal

      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: (Score:3, Informative)

        Which would have gotten you sent to jail? He basically said what you said, telling it on slashdot and writing letters to editors is kind of like sending it to a news outlet.

        Wikileaks couldn't really have helped because as soon as they provide any information his anonymity is gone because the FBI will have known it was he who leaked the info.

        • otoh, wikileaks might actually publish it first. A conventional newspaper will propably just shop him, and give the letter back to the FBI.

      • by way2trivial (601132) on Thursday August 12, 2010 @02:19PM (#33230584) Homepage Journal

        http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2003/03/10/LIBRARIES.TMP [sfgate.com]
        "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."

        • "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."

          I wonder if this technique could be used in other ways.

          An ISP could use automation to send its customers some sort of message once a day as long as the the customer is not under investigation in a message queue the customer doesn't need to check. If an NSL comes for a customer, the "not under investigation" flag could be disabled for that customer. The ISP could then set up an email alert / automated phone message if the message is not sent one day to make it very obvious to the customer that some unidentif

        • Re: (Score:3, Interesting)

          by dkleinsc (563838)

          Another variation on this tactic that I saw in Vermont was a sign on the wall of the library that said "The FBI has not been here. Watch for the discrete removal of this sign."

        • RSync.net, the online backup company, has been using a "warrant canary" for many years now:

          Every week they update a special page with a PGP-signed dated article stating something like this:

          http://www.rsync.net/resources/notices/canary.txt [rsync.net]

          The current message is here:


          -----BEGIN PGP SIGNED MESSAGE-----
          Hash: SHA1

          2010-08-09

          No warrants have ever been served to rsync.net, or rsync.net principals or employees.
          No searches or seizures of any kind have ever been performed on rsync.net assets,
          including:

          ALL San Diego lo

    • by Pojut (1027544)

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

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

      Still, I know what you're getting at. I'll leave it with a Bill Hicks quote:

      "Go back to bed, America! You are free to do what we tell you! You are free to do what we tell you!"

      • Re:Troubling (Score:5, Insightful)

        by Hatta (162192) on Thursday August 12, 2010 @02:02PM (#33230412) Journal

        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 (Score:5, Insightful)

        by mean pun (717227) on Thursday August 12, 2010 @03:00PM (#33231074)

        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 (Score:4, Insightful)

      by spun (1352) <loverevolutionary@@@yahoo...com> on Thursday August 12, 2010 @01:56PM (#33230332) Journal

      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 (Score:5, Interesting)

        by Shakrai (717556) * on Thursday August 12, 2010 @02:03PM (#33230432) Journal

        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 (Score:5, Informative)

          by spun (1352) <loverevolutionary@@@yahoo...com> on Thursday August 12, 2010 @02:20PM (#33230592) Journal

          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 [wikipedia.org], 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: (Score:3, Insightful)

            Let's not forget Mosaddegh [wikipedia.org] "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 (Score:5, Insightful)

            by Monchanger (637670) on Thursday August 12, 2010 @02:58PM (#33231048) Journal

            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.

            • by spun (1352)

              We give less per capita than any other first world nation, and only to countries where we have an economic interest. What did we do to protect East Timor from Suharto? You also forgot to mention the Empire we are most like: the Dutch Empire [wikipedia.org]. Empires are not the same as they used to be in any case, they are primarily economic rather than military. We still use the military to protect our economic interests, but we no longer need to occupy a country in order to exploit it. We just overthrow any elected head o

        • Re:Troubling (Score:5, Interesting)

          by mcgrew (92797) * on Thursday August 12, 2010 @02:25PM (#33230648) Homepage Journal

          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.

        • by Benfea (1365845) on Thursday August 12, 2010 @02:29PM (#33230684)

          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.

      • by SirGarlon (845873)

        "Liberty, Security, Empire: pick any two,"

        If only we could have two! All we've got is the empire.

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

        Did empires ever?

        • Re: Troubling (Score:4, Insightful)

          by spun (1352) <loverevolutionary@@@yahoo...com> on Thursday August 12, 2010 @02:37PM (#33230766) Journal

          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.

      • by Intron (870560)

        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.

        In what sense have NSLs and the Patriot Act increased security? If I were a terrorist I would get a job with the government, since I can get any information I need and not have to worry about any oversight.The fed is up to 2.15 M employees, you think they are all thoroughly screened? If we were really concerned with security, we would be making the government more open.

        • by spun (1352)

          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.

          In what sense have NSLs and the Patriot Act increased security?

          In what sense did I say they did increase security?

      • 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.

        It was getting better until recently... the history of the limitation of free speech in the US has showed, over two centuries, a gradual trend of easing of restrictions during times of conflict/war.

        This trend is in danger of changing, with inroads against it made under GWB and not being reversed

        • by spun (1352)

          It's amusing to watch liberals fall all over themselves justifying the fact that BHO has not reversed Bush's policies on this issue. Well, not so much amusing as terribly, terribly depressing.

          • Re: (Score:3, Insightful)

            by Red Flayer (890720)
            I agree fully -- and I'm a liberal :)

            Of course, I've always seen Obama as a corporatist centrist, just like Clinton... I don't know why so many vocal liberals were under the delusion that Obama was exactly what they wanted him to be, instead of what he really is.
    • Power (Score:4, Insightful)

      by Anonymous Coward on Thursday August 12, 2010 @02:01PM (#33230402)

      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.

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

      You're about 212 years behind the times [wikipedia.org].

    • Re:Troubling (Score:4, Interesting)

      by RAMMS+EIN (578166) on Thursday August 12, 2010 @02:30PM (#33230690) Homepage Journal

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

      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 (Score:4, Insightful)

        by RAMMS+EIN (578166) on Thursday August 12, 2010 @02:40PM (#33230812) Homepage Journal

        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.

    • If not, I have to question your willingness to incur incarceration for your principles. Not that I think it would be wrong -- I'd applaud you. But, I'm not convinced you know what you'd be in for.

      If you are incarcerated for more than a few days, you will probably lose your job, which will make mounting a legal defense more difficult unless you have plenty of cash (and it hasn't been seized or your assets otherwise frozen). I presume you will not accept a plea bargain, because it appears you would rather fig

  • Yeah. (Score:5, Informative)

    by TrisexualPuppy (976893) on Thursday August 12, 2010 @01:55PM (#33230316)
    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.
    • by mcgrew (92797) *

      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.

      TFA says the same thing, so your post serves to back up what TFA said.

    • Re:Yeah. (Score:5, Interesting)

      by Ironhandx (1762146) on Thursday August 12, 2010 @02:08PM (#33230458)

      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.

    • by epiphani (254981)

      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.

      Bolded the important part. This is one guy with a small ISP. Every other business, ISP, content provider, etc, bends over immediately. There is no more expectation of privacy, and the forth amendment is long dead.

    • Re: (Score:2, Insightful)

      by cdrudge (68377)

      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?

      • Re:Yeah. (Score:5, Interesting)

        by TrisexualPuppy (976893) on Thursday August 12, 2010 @02:20PM (#33230596)

        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.

    • Ah, so the FBI are liars.

      I wonder why I root for Al Capone in all those gangster movies.....

    • by swb (14022)

      (1) Size up opponent in terms of political clout, potential exposure and wealth.
      (2) Weakness on any front? Issue National Security Letter
      (3) Profit!!!

    • Re:Yeah. (Score:4, Insightful)

      by elrous0 (869638) * on Thursday August 12, 2010 @02:35PM (#33230732)
      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).
  • I can tell you. (Score:2, Informative)

    The FBI wanted the entire customer list and all of their assigned IP address for as long as they were with the ISP.

    IOW, they wanted everything.

    • by elrous0 (869638) *
      Don't worry, I'm sure they would never abuse the masses of information obtained on completely innocent customers not involved at all in this investigation. After all, they're the FBI. You can trust them. J. Edgar Hoover said so.
    • Re: (Score:3, Insightful)

      by Ironhandx (1762146)

      I just wish this guy had another ISP opened. I would like to get my Internet connection from him, AKA someone with scruples.

  • by elrous0 (869638) * on Thursday August 12, 2010 @01:59PM (#33230366)
    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! (Score:5, Interesting)

    by natehoy (1608657) on Thursday August 12, 2010 @02:02PM (#33230414) Journal

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

    Who's with me?

  • A Solution? (Score:5, Interesting)

    by karcirate (1685354) on Thursday August 12, 2010 @02:57PM (#33231030)

    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? (Score:5, Insightful)

      by evilviper (135110) on Thursday August 12, 2010 @03:58PM (#33231970) Journal

      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.

    • e. hit you a lot and charge you with the lazy cop trifecta of resisting arrest, attempted assault on an officer and obscene language. It's their word against yours.
      Once law enforcement starts going down the "might is right" route you have to be careful which fights you choose because the wonders of medicine can not fix all damage or remove all pain. Unless you are somebody that a lot of people care about or somebody sets you up as a "symbol" your hardship just becomes another statistic for a later histori
  • by Forrest Kyle (955623) on Thursday August 12, 2010 @03:49PM (#33231782) Homepage
    Here's a reminder for all the Obama fanatics:

    "the fight over NSLs is not over. The Obama administration has been seeking to expand the FBI’s power to demand internet activity records of customers without court approval or suspicion of wrongdoing. If granted, the data sought without a court order could expand to include web browser and search history, and Facebook friend requests."

    It puts many of the anti-Bush wiretapping arguments in perspective. I was certainly not a supporter of George W. Bush, but my support of Ron Paul is looking more sparkling by the month.

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