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Plaintiff who challenged FBI's national security letters reveals concerns
Two things, he said, "just leaped out at me." The first was the letter's prohibition against disclosure. The second was the absence 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," said Merrill. He said it seemed to him to violate the constitutional ban against unreasonable searches and seizures.
The letter said that the information was sought for an investigation against international terrorism or clandestine intelligence activities. Merrill said he thought it "outlandish" that any of his clients, many of whom were ad agencies and major companies as well as human-rights and other nonprofit groups, would be investigated for terrorism or espionage.
Although Merrill cannot further discuss the types of data sought, he said, "I wouldn't want the FBI to demand stuff like that about me without a warrant." The information an Internet company maintains on customers "can paint a really vivid picture of many private aspects of their life," he said, including whom they socialize with, what they read or write online and which Web sites they have visited.
Goodman said Merrill's letter "sought the name associated with a particular e-mail address" and other data that, in a criminal case, likely would require a court order.
Merrill confided in his lawyer, who suggested they turn to the ACLU. The civil liberties group decided to file a case, Doe v. Ashcroft, referring to then-Attorney General John Ashcroft.
The case yielded two significant rulings. The first was a September 2004 district court decision that the national security letter statute was unconstitutional, which prompted Congress to amend the law to allow a recipient to challenge the demand for records and the gag order. The second was a December 2008 appeals court decision that held that parts of the amended gag provisions violated the First Amendment and that, to avoid this, the FBI must prove to a court that disclosure would harm national security in cases where the recipient resists the gag order. Senior administration officials have said the FBI has adopted that ruling as policy.
The FBI withdrew its letter to Merrill in November 2006.