Challenging the National Security Letter: Doe v. Ashcroft
After receiving a
National Security Letter (NSL) from the
FBI, he sued the FBI and
Department of Justice and became the plaintiff in the lawsuit
Doe v. Ashcroft (filed April 9, 2004 in the United States) filed on behalf of a formerly unknown
ISP owner by the
American Civil Liberties Union and the
New York Civil Liberties Union against the U.S. federal government. The letter—on FBI letterhead—requested that Merrill provide 16 categories of "electronic communication transactional records," including e-mail address, account number and billing information. Most of the other categories remain
redacted by the FBI. Merrill never complied with the FBI's National Security Letter request, and eventually—several years into the lawsuit—the FBI decided it no longer needed the information it had demanded and dropped its demand for records. However, for several years after dropping the demand, the FBI continued to prevent Merrill from publicly speaking about the NSL, consulting an attorney, or even from being publicly identified as the recipient of the NSL. Because National Security Letters are accompanied by an open-ended, lifelong
gag order, Merrill was unable to be identified in court papers as the plaintiff in the case and instead was referred to as "John Doe". As the years passed and the person who held the office of
Attorney General changed, the case was renamed from
Doe v. Ashcroft to
Doe v. Gonzales, and then to
Doe v. Mukasey, and finally
Doe v. Holder. In fact, in 2007
The Washington Post made an exception to its policy against anonymous op-eds to publish an editorial by Merrill because of the gag order. 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. On August 10, 2010, after more than six years, Nicholas Merrill was partially released from his gag order and allowed to reveal his identity, although he still could not reveal what information the FBI sought from him. This was three years after Merrill won The
Roger Baldwin 'Medal of Liberty' award from the
ACLU, which had to present the award to an empty chair at the time. On September 14, 2015, 11 years after the initial NSL, a federal district court judge in New York fully lifted the gag order, allowing Merrill to speak freely about the contents of the NSL he received. On November 30, 2015, the unredacted ruling was published in full. == Calyx Institute ==