US court kills FBI gag order slapped on ISP... 11 years later

Bloke still can't tell you what it was the Feds wanted. So we will

A Federal Court in New York has struck down an FBI gagging order that has been in place for 11 years.

Describing it as "extreme and overly broad," in a decision [PDF] published Tuesday, Judge Victor Marrero dismissed the order against Nicholas Merrill. Merrill had received a National Security Letter (NSL) from the FBI in 2004 in his position as head of an ISP.

There was, the judge decided, "no good reason" why Mr Merrill should not be allowed to talk about any aspect of the NSL.

However, since the order will not come into effect for 90 days, and the FBI is likely to appeal, there still remains a very good reason why Merrill can't disclose the NSL's full contents.

Not so the judge himself, who went out of his way to make the information obvious in his judgment, even after it was redacted by the FBI. More on that below.

The start

Back in 2004, under authority that the FBI claims was given to it through the Patriot Act, Merrill and his small ISP were told to hand over their customers' information. The order came with a gagging order that prevented him from talking about any details of the demand.

Merrill refused to hand over the information and sued both the Feds and the Department of Justice. He wanted the gagging order lifted so he could say what information the government had demanded.

Due to the gagging order, Merrill was not allowed to be named in the lawsuit, so it started out as "Doe v. Ashcroft" – representing "John Doe" and then-Attorney General John Ashcroft. He has seen the case name changed three times since to reflect the different attorneys general.

A decision in the same year as he filed his lawsuit enabled Merrill to challenge the records demand and the gag order. But it wasn't until six year later, in 2010, that he was allowed to reveal his identity.

In 2008, an appeals court found that the FBI would have to prove to a court that disclosing the NSL's contents would harm national security. That decision led to the decision this week by the court that no such risk would occur.

The FBI can appeal the decision however, and even Merrill expects it to, posting on Twitter that an appeal "seems likely."

So what did the FBI actually ask for?

While we may still have to wait months or even years to hear from Merrill definitively on what the FBI demanded he hand over, significant clues appear in the court decision, which is in part redacted.

It's been known for some time that the FBI asked for 16 different categories of information. Those categories were listed in an attachment to the NSL and are defined as "electronic communication transactional records," or ECTR. That term appears in the law that allows for national security letters but has not been defined; the FBI uses its own definition of what that means, which it refuses to disclose.


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