Nicholas Merrill, the executive director of the Calyx Institute. He was president of an Internet service provider, or ISP, and filed the first court challenge to the FBI’s national security letters in 2004. For six years the FBI barred him from revealing it had sent him a national security letter demanding information about his clients–including Democracy Now!, whose website was hosted by his company. Merrill fought the government and won a settlement in 2010 with the help of the ACLU that allowed him to reveal his identity and discuss some details about his experience.
Ladar Levison, Founder, owner and operator of Lavabit.
Jesse Binnall, Lawyer for Lavabit and Ladar Levison.
We continue our discussion of government surveillance and Internet privacy with someone who was under an FBI gag order for six years. In early 2004, Nicholas Merrill, who was running an Internet service provider in New York called Calyx, was issued a national security letter that ordered him to hand over detailed private records about some of his customers. Under the law, recipients of the letters are barred from telling anyone about their encounter with the FBI. While Merrill was not the first American to be gagged after receiving a national security letter, he was the first to challenge the FBI’s secret tactics. 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 in August 2010, after reaching a settlement with the FBI, that Merrill was able to reveal his identity. "[The case] resulted in the national security letter provision of the PATRIOT Act being ruled unconstitutional twice," Merrill says. "The problem was, though, we were never able to get to the Supreme Court to get a final, binding ruling that would affect the whole country. ... The concern about cybersecurity and the concerns about privacy are really two sides of the same coin. There are a lot of really uncontroversial examples in which organizations and people need confidentiality: Medicine is one, journalism is another, human rights organizations is an obvious third. We’re trying to make the case that if the right of Americans to encrypt their data and to have private information is taken away, that it’s going to have grave, far-reaching effects on many kinds of industries, on our democracy as a whole, and our standing in the world." (Related: Watch our exclusive interview with the owner of Edward Snowden’s encrypted email service.)
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: We continue our discussion of the shutdown of Lavabit, Edward Snowden’s email provider. We’re now joined by someone who was under an FBI gag order for six years after receiving a national security letter that ordered him to hand over detailed private records about some his customers. In early 2004, an FBI agent visited Nicholas Merrill, who was running an Internet service provider in New York called Calyx. 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, Nick Merrill was simply identified as "John Doe." It was only in August 2010, after reaching a settlement with the FBI, that Merrill was able to reveal his identity.
Nick Merrill, we welcome you back to Democracy Now! Still with us, Ladar Levison, founder, owner and operator of Lavabit, which he just shut down, and his lawyer, Jesse Binnall. They’re both joining us from Washington.
Nick, as you listened to the story of our guest, of Ladar Levison, talk about what you received and what that caused you to do, this NSL.
NICHOLAS MERRILL: I got a visit, personally, from an FBI agent in my offices in 2004. The agent delivered to me a letter, and the letter demanded that I hand over a lot of information about one of the clients of the company. It caused me great concern, because the first thing that sort of really shocked me was that this was not a court order. This was a letter from the FBI signed by an attorney. And it seemed to me that it was not a legal order, and it seemed that it was pretty clearly not constitutional on its face. The FBI had not gone to court. It had not proven probable cause before a judge. And so, the other problem, though, with the letter was that it told me that I could never tell any person that I had received the letter, which pretty obviously precluded me from speaking to a lawyer or to anyone else in my company or to anyone about it. And I was quite afraid to disobey the letter. But after I took a bit of time and thought about it, I decided, you know, we always have the right to speak to an attorney, so I called my private attorney. We then went together to the ACLU, and then we ended up embroiled in this really long court saga which has lasted almost seven years.
AMY GOODMAN: Which also involved four librarians from Connecticut—right?—who were also given an NSL, national security letter, when they were asked for information about Internet users in the library systems of Connecticut.
NICHOLAS MERRILL: Yeah, somewhere about two years into the case, the librarians became co-plaintiffs along with me, although at that time they were just known as "Connecticut Doe," and I was "New York Doe," and we didn’t know who each other were until many years later. But, yes, the librarians had also received a national security letter in Connecticut for library patron records, also a very upsetting issue.
The case, though, it was an interesting case because it resulted in the national security letter provision of the PATRIOT Act being ruled unconstitutional twice. And actually, recently, I think, in California in the Ninth Circuit, there was a similar ruling. The problem was, though, we were never able to get to the Supreme Court to get a final, binding ruling that would affect the whole country. And to be honest, it felt to me like the government wasn’t really acting in good faith, that when it seemed like they were going to lose, they would back out of all these cases. It seemed to me that they were afraid to have the Supreme Court rule on the issue itself.
AMY GOODMAN: Why is this important?
NICHOLAS MERRILL: It’s really important because what’s at the heart of this matter here, the 800-pound gorilla in the room, is warrantless wiretapping and surveillance of Americans without any suspicion of wrongdoing. As we’ve heard with the revelations from Edward Snowden, this is a very widespread problem. And what I started to get a sense was happening back in 2004 was that essentially the rule of law was being eroded by a combination of the Department of Justice acting without proper checks and balances overseeing what they were doing. By evading the courts and by evading the court oversight and by issuing these national security letters themselves, they were able to gather huge amounts of information on Americans. And then, also by putting everyone under gag orders who received them, they were able to prevent anyone from talking about what was happening.
AMY GOODMAN: If you even talk about getting a national security letter, you face five years in prison.
NICHOLAS MERRILL: Right.
AMY GOODMAN: If you even mention it to a co-worker. Why don’t we turn to President Obama speaking in 2005 about national security letters. At that time that he was speaking, he was still a U.S. senator.
SEN. BARACK OBAMA: This is legislation that puts our own Justice Department above the law. When national security letters are issued, they allow federal agents to conduct any search on any American, no matter how extensive, how wide-ranging, without ever going before a judge to prove that the search is necessary. All that is needed is a sign-off from a local FBI agent. That’s it. Once a business or a person receives notification that they will be searched, they are prohibited from telling anyone about it, and they’re even prohibited from challenging this automatic gag order in court. Even though judges have already found that similar restrictions violate the First Amendment, this conference report disregards the case law and the right to challenge the gag order. If you do decide to consult an attorney for legal advice, hold on. You will have to tell the FBI that you’ve done so. Think about that. You want to talk to a lawyer about whether or not your actions are going to be causing you to get into trouble. You’ve got to tell the FBI that you’re consulting a lawyer. This is unheard of. There is no such requirement in any other area of the law. I see no reason why it’s justified here. And if someone wants to know why their own government has decided to go on a fishing expedition through every personal record or private document, through the library books that you read, the phone calls that you’ve made, the emails that you’ve sent, this legislation gives people no rights to appeal the need for such a search in a court of law. No judge will hear your plea; no jury will hear your case. This is just plain wrong.
AMY GOODMAN: That was Barack Obama speaking in 2005 when he was a U.S. senator, speaking about national security letters. Ladar Levison, I know you can’t say if you’ve received a national security letter, but what are your thoughts on hearing this?
LADAR LEVISON: I think it’s important to note that, you know, it’s possible to receive one of these orders and have it signed off on by a court. You know, we have the FISA court, which is effectively a secret court, sometimes called a kangaroo court because there’s no opposition, and they can effectively issue what we used to consider to be an NSL. And it has the same restrictions that your last speaker, your last guest, just talked about.
AARON MATÉ: And, Nick, can you talk about the work around privacy that you’re doing today?
NICHOLAS MERRILL: Sure.
AARON MATÉ: And if you were shaping policy on Internet privacy, what would it look like to you?
NICHOLAS MERRILL: One of the points that we’re trying to make is that the concern about cybersecurity and the concerns about privacy are really two sides of the same coin, and that there are a lot of really uncontroversial examples in which organizations and people need confidentiality. Medicine is one. Journalism is another. Human rights organizations is an obvious third. We’re trying to make the case that if the right of Americans to encrypt their data and to have private information is taken away, that it’s going to have grave, far-reaching effects on many kinds of industries, on our democracy as a whole, and our standing in the world. There has also been a study recently saying that the government’s policies weakening the right to privacy and the right to use encryption is going to cost American cloud service providers upwards of $35 billion over the next few years. So I think it’s going to have really terrible economic effects. And these are some issues that we need to consider when we look at the policies that the government is taking.
AMY GOODMAN: Ladar Levison, you’ve shut down Lavabit. What would it mean if Google and Microsoft and Yahoo took a similar stand?
LADAR LEVISON: I think a major portion of the U.S. economy would shut down with it. Now, whether that would cause Barack Obama to reconsider his policies, I don’t know.
AMY GOODMAN: You think of the web blackout protesting SOPA.
LADAR LEVISON: Yeah, yeah, but those didn’t actually shut down—well, they did shut down services, some non-critical services, for a day. But that was more of a visual protest. Our economy depends upon email, and more now than ever before, it depends upon Gmail, because Gmail is used to host so many corporate email accounts, along with Outlook 365, which is the Microsoft service, Microsoft cloud service. And those shutting down would effectively force millions of Americans to find a new way to communicate.
AMY GOODMAN: Well, I want—we have to leave it there, unfortunately. Ladar Levison, thank you very much for being with us—has just decided to shut down his service provider, his Lavabit—Jesse Binnall, attorney, and Nick Merrill of the Calyx Institute.
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