Gagged for 6 Years by FBI 'National Security Letters,' Internet Provider Speaks Up

AMY GOODMAN: [My current guest] has been under an FBI gag order for the past six years. In early 2004, an FBI agent visited Nicholas Merrill and handed him a national security letter that ordered him to hand over detailed private records about some of his customers. At the time, Merrill was running an internet service provider in New York called Calyx.

Under the USA PATRIOT Act, the FBI issued more than 192,000 national security letters between 2003 and 2006 in order to obtain sensitive information without a court order. Under the law, recipients of the letters are barred from telling anyone about their encounter with the FBI.

While Nicholas Merrill was not the first American to be gagged after receiving a national security letter, an NSL, he was the first to challenge the FBI’s secret tactics. After receiving the national security letter, Merrill went to the American Civil Liberties Union, which then filed the first lawsuit challenging the national security letter statute. In the lawsuit, Merrill was simply identified as John Doe. It was only this week, after reaching a settlement with the FBI, that Merrill has been able to come public to reveal his identity. Nick Merrill joins us here in New York.

We welcome you to Democracy Now!

NICHOLAS MERRILL: Thank you. Good morning.

AMY GOODMAN: It’s good to have you with us. I bet it’s good to be able to speak.

NICHOLAS MERRILL: It is kind of a relief, yeah. It’s also a bit surreal, because I’m not exactly used to it yet. And almost every time I say something about it, I kind of have this knee-jerk reaction, like I’m not supposed to talk about that. And, you know, that got so ingrained into me that it’s still a bit strange.

AMY GOODMAN: Well, in a moment, we’re going to speak to a Connecticut librarian, who was joined with your case—four Connecticut librarians, because they, too, resisted an NSL.

NICHOLAS MERRILL: Yes.

AMY GOODMAN: But why don’t you tell us your story? What day was it? When did it happen? And what happened?

NICHOLAS MERRILL: I don’t know if I’m allowed to, for some reason, say the exact day. It was in February 2004. An FBI agent visited my office. He brought me a letter. You know, he badged himself. He identified himself as an agent. He gave me this letter. I opened it. I read it in his presence.

And a few things kind of leaped out at me upon first reading the letter, one of which was that I was commanded to never tell anyone—anyone—about the letter, not that I had received it, not that there had been a request for information. It was very broad, and there was no exceptions in there. There was no instructions on how to appeal. There was nothing about contacting a lawyer. So I said to the agent at that time, "It says here I can’t tell anyone about this. Does that include my attorneys? Does that include my business partners?" And the man said something to the effect of, "I’ve just been given the job of bringing you this letter. I don’t know. I’m not a decision maker." And that was basically the end of our conversation. Then he left.

At that point, I was left with this letter, which asked for what I believe to be constitutionally protected information belonging to one of my clients.

AMY GOODMAN: You know, in the interest of full disclosure, we were one of your clients then.

NICHOLAS MERRILL: Yes, correct.

AMY GOODMAN: We worked with Calyx.

NICHOLAS MERRILL: Yes.

AMY GOODMAN: We worked with you.

NICHOLAS MERRILL: Yes.

AMY GOODMAN: Did the FBI asked about us?

NICHOLAS MERRILL: I’m not allowed to really talk about the target of the investigation. That’s—you know, I’m partially released from the gag order, in that I can say I was the plaintiff in the case, it was my company, but I’m not allowed to say anything that would give anyone any kind of a hint, basically, as to which of my, you know, 200-some clients it may have been about.