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ABA Journal

Letters of the Law: National Security Letters Help the FBI Stamp Out Terrorism But Some Disapprove

Posted Sep 7, 2012 6:11 PM CDT
By Richard Brust

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Nicholas Merrill, who challenged an FBI demand
for private records about his Internet company's
clients, is now working on creating a surveillance-
resistant ISP. Photo by Sarah Tew/CNET.

When Nicholas Merrill answered the door at Calyx, his Manhattan Internet company in February 2004, he encountered an FBI agent, who pulled a letter from his coat.

It instructed Merrill to surrender at least 16 categories of “electronic communication transactional records”—detailed private records including billing notices, email addresses and account numbers—about his clients.

“I opened [the letter] in [the agent’s] presence,” Merrill said in a TV interview with Democracy Now. “It was very broad. There were no instructions on how to appeal, no instructions on contacting a lawyer.”

Merrill, who opened Calyx in 1994, is a techie, not a lawyer. But two items in the letter struck him as questionable. The first was a warning not to disclose the letter or its content to anyone. The second was the lack of a judge’s signature. “It seemed to be acting like a search warrant, but it wasn’t a search warrant signed by a judge,” he told the Washington Post in 2010.

“I know the Constitution,” Merrill told Democracy Now. “The government needs to prove probable cause and go to a judge in order to search.”

In Merrill’s hand was a national security letter, a subpoena issued by the FBI for terrorism and espionage investigations. As he noted, NSLs differ from search warrants. Search warrants require a magistrate to find probable cause. To order an NSL, an FBI special agent or senior official must simply draft a letter certifying that the targeted information pertains to clandestine intelligence activities or international terrorism.

Click here to read the rest of "Letters of the Law" from the September issue of the ABA Journal. Click here to read this month's Patriots Debate essay: "National Security Letters: Building Blocks for Investigations or Intrusive Tools?"

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