- The Washington Times - Tuesday, December 1, 2015

The lifting of an 11-year-old gag-order this week has confirmed that federal investigators have compelled Internet companies to cough up their customers’ browsing history, online records and other personal information without ever applying for a warrant.

Nick Merrill previously operated a now-defunct Internet Service Provider (ISP), Calyx Internet Access, and since February 2004 has found himself in and out of federal courthouses arguing over a request for user data he received in the form of a National Security Letter, or NSL.

The FBI issued more than 400,000 NSLs between 2003 and 2011, the Justice Department’s inspector general determined last year. Those letters are often issued to ISPs, banks and other companies that keep electronic records in order for authorities to find out information pursuant to criminal and counterterrorism investigations.

Federal agents needn’t obtain search warrants before conducting that sort of electronic surveillance, however, and the routine filing of gag-orders alongside NSLs have more often than not forced recipients to stay mum. Indeed, such was the case with respect to the inquiry Mr. Merrill landed in the center of more than a decade ago — up until Monday, when the order was lifted and court filings made public for the first time.

“For more than a decade, the FBI has been demanding extremely sensitive personal information about private citizens just by issuing letters to online companies like mine,” Mr. Merrill, 43, said Monday.

“The FBI has interpreted its NSL authority to encompass the websites we read, the Web searches we conduct, the people we contact and the places we go. This kind of data reveals the most intimate details of our lives, including our political activities, religious affiliations, private relationships and even our private thoughts and beliefs,” he claimed.

The release of court documents on Monday was significant, he told Reuters, “because the public deserves to know how the government is gathering information without warrants on Americans who are not even suspected of a crime.”

The publishing of of court filings this week revealed that the FBI had asked Mr. Merrill to supply investigators with more than just a little metadata: Specifically, Calx had been compelled to provide authorities with addresses, phone numbers, purchase orders and screen names pertaining to a person of interest, as well as any other electronic information that may have been incidentally collected.

“The fact that the FBI can obtain such sensitive information without prior judicial review raises serious Fourth and First Amendment questions,” said Lulu Pantin, a law student intern who represented Mr. Merrill in his case. “Mr. Merrill’s experience demonstrates the FBI indefinitely silences Internet Service Providers while forcing them to de-anonymize their users and divulge a broad range of information about law-abiding citizens’ online activity, simply by issuing a letter.”

The use of NSLs exploded following the Sept. 11, 2001, terrorist attacks, but attempts to rein in the government’s electronic surveillance authorities have escalated in the last two years after Edward Snowden, a former contractor for the National Security Agency, leaked documents to the media which detailed the scope of the NSA’s operations and capabilities.

But “By silencing recipients of NSLs,” Mr. Merrill tweeted on Monday, the “… FBI has been able to prevent ISPs, phone companies [and] others from effectively collaborating for reform.”

The Obama administration said last year that Internet companies that are served with NSLs can inform their customers broadly, but only by providing a range with respect to the number of requests received. That October, Twitter filed a lawsuit against the Justice Department challenging the government’s rules and requested that tech firms be allowed to be upfront with their clients.

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