FBI 'gag order' on spying revealed for first time

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Documents unsealed Monday revealed for the first time the contents of a controversial form of government order that is used by the FBI to obtain surveillance information without a warrant.

The newly public documents are thought to be the first time the government has revealed details of a so-called national security letter (NSL). 

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Nicholas Merrill, the owner of a small Internet service provider, refused to comply with such an order he received in 2004. He has been embroiled in an 11-year legal fight against the lifetime gag order associated with NSLs.

After years of piecemeal victories, a federal judge ruled in August that the gag order should be lifted in totality following a 90-day grace period to give the FBI the opportunity to appeal.

The agency, which had withdrawn the original demand for data in 2006, declined to challenge the decision. The 90-day waiting period has now expired, allowing Merrill to make public the contents of the letter. 

“Judge [Victor] Marrero’s decision vindicates the public’s right to know how the FBI uses warrantless surveillance to peer into our digital lives,” Mr. Merrill said when the decision was announced.

The original national security letter, now public, demanded that Merrill turn over users’ screen names, complete browsing history, online purchase history, IP addresses and billing information, as well as “any other information which you consider to be an electronic communication transactional record.”

The FBI issued over 400,000 national security letters between 2003 and 2011, with annual requests ranging from around 30,000 in 2009 to around 56,000 in 2004, the year Merrill received one.

While there was a dip in the use of NSLs from 2006 to 2009, according to a 2014 Justice Department inspector general report, “classified reports … indicate that the FBI’s use of NSLs returned to historically typical numbers after 2009.

Critics say that the use of national security letters allows law enforcement to escape the appropriate judicial oversight for surveillance.

In several earlier reviews, the inspector general found “repeated instances of the FBI’s misuse of NSL authorities during 2003 and 2006.”

The Obama administration last year allowed tech companies to reveal the number of NSL requests they have received, but the disclosures must be in the form of broad ranges.

Twitter has sued in federal court, seeking to provide more details on the requests in its transparency reports.

“It’s our belief that we are entitled under the First Amendment to respond to our users’ concerns and to the statements of U.S. government officials by providing information about the scope of U.S. government surveillance — including what types of legal process have not been received,” the company said in a statement.