ISP Owner Who Fought FBI Spying Freed From Gag Order 404
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.'"
Re:Troubling (Score:5, Insightful)
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 (Score:4, Insightful)
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.
Bet this guy was VERY exceptional (Score:5, Insightful)
Power (Score:4, Insightful)
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.
Re:Troubling (Score:5, Insightful)
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:Yeah. (Score:2, Insightful)
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:I can tell you. (Score:3, Insightful)
I just wish this guy had another ISP opened. I would like to get my Internet connection from him, AKA someone with scruples.
Re:Troubling (Score:5, Insightful)
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, [indybay.org] wait... [sjgames.com]
Yeah! National security! For our own protection! (Score:5, Insightful)
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.
Re:Troubling (Score:3, Insightful)
I don't see an exception for criminal investigations in the First Amendment.
That's because you don't understand the law. Read any court case about the limitation of freedom of speech and you'll see where that comes from.
Neither do you have unrestricted access to 'arms' as the NRA narrowly thinks the Second states.
Re:Yeah. (Score:4, Insightful)
Re:Troubling (Score:2, Insightful)
The first amendment is pretty clear. Any ruling that contradicts the clear and obvious meaning of the first amendment is wrong.
Re: Troubling (Score:4, Insightful)
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 (Score:3, Insightful)
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 (Score:4, Insightful)
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 (Score:1, Insightful)
>>>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.
Re:Bet this guy was VERY exceptional (Score:4, Insightful)
>>>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.
Re:Troubling (Score:2, Insightful)
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.
Last I checked you always have the right to an attorney (which he did contact) no matter what, but this is only part of the problem with NSL's. It's more the infringement of the 4th amendment that concerns me. This is just as bad as the warrantless wire tapping that was going on (and most likely still it). It's an abuse of power if you don't have one branch of government checking on the other. Now if the NSL came with a warrent, signed by a judge to obtain the information/items that where being asked for in the NSL (with just the NSL having the gag order to "protect the ongoing investigation") that would be IMHO would not be an abuse of power.
Re:Troubling (Score:3, Insightful)
Re:Troubling (Score:5, Insightful)
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 (Score:5, Insightful)
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 (Score:5, Insightful)
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 [digg.com].
Re:Troubling (Score:5, Insightful)
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:5, Insightful)
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 (Score:3, Insightful)
Don't you have a hit to take hippie?
What's your motivation for posting that? Are you trying to insult me? Win me over to your way of thinking? Convince others you are right? Whatever your motivations, you might want to look at your tactics. I don't think they are getting you what you want.
Re:Troubling (Score:5, Insightful)
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 (Score:2, Insightful)
Because there is nothing inherent in a corporation that is different from a government
Corporations don't have the power to send armed agents to kick in my door and slap handcuffs on me.....
Re:Troubling (Score:4, Insightful)
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 (Score:5, Insightful)
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 (Score:3, Insightful)
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.
Re:A Solution? (Score:1, Insightful)
You missed 3e [xkcd.com]. The government can totally screw you over without doing it publicly or allowing you to continue having the option of revealing the letter. Or, they could show enough finesse to do 3d (Screw you over in secret) enough to ensure capitulation while still giving them the ability to screw you over more.
Other uses for this sidestep? (Score:3, Insightful)
"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 unidentified investigation is going on.
Title 18, U.S.C. Section 2709(c) [cornell.edu] seems to only specifically prohibit disclosure "that the Federal Bureau of Investigation has sought or obtained access to information or records". Stopping sending notifications that there is no investigation doesn't necessarily seem to violate that prohibition.
You get what you don't pay for (Score:3, Insightful)
"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.
Have you ever been to jail? (Score:3, Insightful)
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 fight. Expect that to be expensive, and drawn out. Also expect bail to be set so high that you can't effectively participate with your legal team in your defense, particularly if you're a thorn in the government's side.
Re:Troubling (Score:3, Insightful)
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:A Solution? (Score:5, Insightful)
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.
Re:Troubling (Score:4, Insightful)
Disturbing (Score:2, Insightful)
SIX YEARS just to release his name, it shouldn't have taken SIX MONTHS to get that far for such obviously unconstitutional actions. Most of the courts decisions were correct, if mildly worded (these courts should be shouting "holy s*** this is unconstitutional, what were you people thinking?" not "..may likely be unconstitutional"), but sheesh. If I broke into a government office and was caught stealing documents I highly doubt I could expect to be free on bond for SIX YEARS just to get to the point were I was convicted of pocketing one of their ball point pens (sorry the closest citizen analogy I could think of).
Re:Troubling (Score:5, Insightful)
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 (Score:5, Insightful)
>>>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 (Score:3, Insightful)
No, no, I'm even more surprised by the argumentation of liberals because I expect more from them. Perhaps most disappointing is their emotion laden appeals for other liberals to stop picking on poor president Obama for not doing what he promised to do, he's just a man not a miracle worker, how can you expect him to do everything he promised in just two years? You know what I say to those "LEeeaaave Brittany Alone!" liberals? I say, fuck that corporate toady Obama, fuck him right in the ear.
MLAT: Yeah, Yeah, Yeah. (Score:1, Insightful)
Yes, The Mutual Legal Assistance Treaty (MLAT) was used to seize Indymedia servers in London.
The order was issued by US authorities against Rackspace US for logfiles on servers hosted by their UK registered subsidiary company over the posting of a picture which showed Italian Police murdering a demonstrator in Rome.
Rackspace US responded by delivering the entire servers to the US authorities.
Rackspace lack the spine that Calyx possesses.
http://www.eff.org/cases/indymedia-server-takedown [eff.org]
Re:Troubling (Score:1, Insightful)
is that the individual citizen is allowed to arm themselves for the security of a free state.
The second amendment is about more than refreshing the tree of liberty yadda yadda. It is about being given the ability to secure yourself, your neighbors, and so on up to your country.
Re:Troubling (Score:3, Insightful)
Like it or not, we need WikiLeaks.
I don't know that we need WikiLeaks. What we need is unbiased investigative reporting, something that is sorely lacking these days because it is hard work. WikiLeaks, aka Julian Assange, has a definite anti-war and possibly an anti-US agenda. Which is his right, I'm not one of those people that thinks 'inalienable rights' requires citizenship.
OTOH, his military source violated US laws and was well aware of what s/he was doing and should be prosecuted. Civil disobedience is not without it's risks. If we were in a real war this information leak would have resulted in a date with a firing squad.
As far as the case at hand, the gag orders as implemented are a complete violation. As long as the FISA court is working, and no one is implying that it isn't, there is no justification for national security letters. But publishing a few on WikiLeaks isn't going to have any real effect on their use. WikiLeaks would have about as much credibility with the average American as Al Jazeera.
Re:Troubling (Score:1, Insightful)
"in that we have extracted billions of dollars in natural resources that remain unaccounted for."
citation please. no criticism i am just curious what you refer to?
Re:Troubling (Score:3, Insightful)
That sounds suspiciously like it validates to "If it's worth my having it's worth him making a sacrifice for.".
Pug
Re:Troubling (Score:5, Insightful)
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.
A Hero (Score:1, Insightful)
Nicholas Merrill is an American hero
Re:Troubling (Score:3, Insightful)
Sitting on the back of a city bus has a strategic advantage.
If the bus has two doors, you have very quick access to the rear door.
You can observe everyone boarding the bus, and their activities while on the bus, without changing your direction of view.
In the event something "bad" happens, you have the opportunity to duck behind the seat in front of you. If some nutjob, or someone after you, comes on with a gun, you have time to take cover before you are seen. With a little luck, there will be a lot of resistance before they get to you. If not, they are at least distracted by checking every seat, when you can hear them walking up the aisle.
While they are walking row to row, seeing if you are hiding, there's a good chance the driver will make moves to stop the action. A bus doesn't stop like a sports car, but he can sure stop fast enough to send someone who isn't holding on, flying forward and ending up on the floor. He also has the opportunity to call for police assistance.
Sitting by the front door, you can be one of the first in view, which is less than advantageous. If they board at the rear door, you may not see them until they are already on board and searching.
Sitting in the middle of the bus does give you two escape routes, but again it does limit your visibility of a potential attacker.
While most people don't think too much about tactical advantage, sometimes it will save your life. If it's a bad neighborhood, it's a prudent choice to have an advantage. If you're in a good area, the chances of crime are lower, but they can still happen.
I don't ride buses much, but when I do, I weigh my options. The best choice is usually the back. If I'm coming up to my stop, I frequently walk forward, but I can then see out all the side windows and the windshield to evaluate the outside situation before the bus stops.
If you've never had a violent encounter, congratulations. No matter where you are, it could always happen sometime, and you don't want the first time it happens to be the time you become the victim.
You can't dance without kneecaps (Score:3, Insightful)
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 historian.
Remember the good cops that play everything by the book are not likely to put you in this sort of situation anyway. It's the minority that are on their way somewhere at all costs and you don't really want to get in the way of their ambition. Unjust laws like this give them free reign without the usual time consuming details of due process.
Re:Troubling (Score:3, Insightful)
Corporations don't have the power to send armed agents to kick in my door and slap handcuffs on me.....
Ever wondered what organisation decided and enforced the decision that they don't have that power?
Re:Troubling (Score:3, Insightful)
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?
And what did she gain? As far as I can tell, by my experience, black people still sit in the back of the bus.
Yes, of course, they don't have to sit there, but most of them seem to.
You, not having these kinds of rules enforced on you, may not appreciate the difference. The difference is huge when you do if by choice instead of lack of choice.