A Small Business Owner Is Fighting the FBI Over Surveillance Program Gag Orders

The owner of a small New York internet company is waging a Goliath-sized battle against the US government over a secret surveillance program that has left him living under a gag order for the past 10 years.

Nicholas Merrill was the owner of Calyx, a website hosting and security consulting company, in 2004 when the FBI sent him a national security letter (NSL) ordering him to turn over information on one of his clients — and not mention the letter to any person, ever. The letters were part of an expansion of government surveillance techniques under the USA Patriot Act.

Last week, Merrill and a team of lawyers from the Media Freedom and Information Access Clinic at Yale Law School filed a lawsuit in federal court in New York alleging that the FBI and federal government are violating his First Amendment rights by keeping him under what is essentially a permanent gag order. The FBI and Attorney General have not yet filed a response in court. The Department of Justice (DOJ) declined a VICE News request for comment. The FBI did not respond to VICE News inquiries.

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Merrill, 42, told VICE News that he has been fighting to speak freely about the FBI's demands because he is worried about the precedent his case sets for the future of the country.

"I feel it ultimately comes from a place of patriotism and concern for the country and the future of the nation," Merrill said. "I just thought, the government has decided to say 'screw the Bill of Rights,' and is gathering information on whoever they want, whenever they want, and what is the ultimate implication of that?"

Though he won't discuss which of his clients were targeted or why, Merrill said he should be able to talk about the fact that the FBI demanded a broad array of information on a citizen without a warrant. Even when the FBI's investigation seemingly ended, Merrill was still barred from speaking about it, or about the letter he received.

"The government is asserting a fairly unprecedented authority to gag someone from ever discussing what types of information they sought," said Nicholas Handler, a Yale law student working on Merrill's case. "This is actually the government asserting broader authority than it ever has in the past to prevent people from discussing that. It raises huge constitutional issues. Permanent bans are almost never constitutionally permissible. It's an issue that strikes at the heart of the core of First Amendment protection."

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Merrill received the letter in 2004 and has been fighting for the right to talk about it ever since, even though the document clearly forbid him from discussing the matter with anyone, even legal counsel.

"I wanted to get legal advice but the letter said I couldn't tell any person, and it made it clear I was going to be in trouble if I didn't follow the directives of the letter exactly," he said. "At the same time, anyone who has any understanding of the law or how the country works knows you're always supposed to be able to talk to a lawyer, and that right can't be taken away, yet you're holding in your hands a letter form the FBI that tells you the opposite, so what do you do?"

After trying to read the entire Patriot Act to understand whether the NSL and gag order were actually legal, Merrill began broadly and vaguely discussing the contents of the letter with his company's lawyer. Soon, he had meetings with the New York Civil Liberties Union and the American Civil Liberties Union. Merrill said everybody agreed it was unconstitutional.

Merrill and the ACLU filed a John Doe lawsuit in New York arguing against the gag order, which was finally partially lifted in 2010, allowing Merrill to identify himself as the suit's John Doe and say, for the first time, that he had in fact received the NSL from the FBI. But even then, Merrill still wasn't allowed to discuss the details. And, as an anti-surveillance and free speech advocate, he wanted to do just that.

"What is left in the gag order is, in essence, the whole public policy issue, the discussion we should have been having this whole time, that the government thinks it can get all this information on everyone at its will without a warrant, and what the implications of that are," Merrill said.

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Handler pointed out that keeping Merrill under a gag order allows the FBI to keep the scope of its surveillance program secret. The NSL program is similar to other Patriot Act programs in that, theoretically, it allowed the FBI to decide for itself — without the oversight of a judge — what type of data targets would be forced to hand over.

"It's very important for Nick Merrill to be able to discuss it," Handler said. "We can only get a sense of the information the FBI allows itself to gather if you look at what it's asked for, and we can only do that by looking at [Merrill's letter.]"

The attorney said the NSL program is "a major means of the government collecting information on private citizens, and it really is one of the more important components of the government surveillance program."

Merrill was one of the first individuals to fight the FBI over the NSL program. The agency sent thousands of similar letters to AT&T, Verizon, and other major companies, according to the DOJ.

Merrill said he expected the companies to join him after he filed the lawsuit, but none did. Google and Twitter have begun fighting to have their gag orders lifted, but it is still unknown how many NSLs the FBI sent, and how much data was collected as a result.

"We still don't have answers to a lot of questions," Merrill said. "How many people are under national security gag orders? I don't know. I don't think anyone knows."

Follow Colleen Curry on Twitter: @currycolleen

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