Calyx is a privacy-oriented ISP. In 2004, the FBI brought its owner, Nicholas Merrill, a National Security Letter — one of the USA Patriot Act’s secret search warrants, which comes with a gag order prohibiting the recipient from ever disclosing its existence.
Merrill has fought the gag order for 11 years, refusing to give up despite government attempts to get the case booted and to run up the court costs beyond Merrill’s ability to pay.
He had a partial victory in 2010, when he and the ACLU won a court victory that allowed him to disclose some elements of the NSL, but left important details — including the categories of information the FBI believes it can request under an NSL — still secret. This latest victory overturns that restriction.
The judge in this case, Judge Victor Marrero, also presided over a 2007 case that overturned part of the Patriot Act, requiring investigators to go through the courts in order to get NSLs. In his Calyx decision, he condemned the government’s secrecy as “extreme and overly broad.”
U.S. District Judge Victor Marrero’s decision invalidated the gag order in full, finding no “good reason” to prevent Merrill from speaking about any aspect of the NSL, particularly an attachment to the NSL that lists the specific types of “electronic communication transactional records” (“ECTR”) that the FBI believed it was authorized to demand. The FBI has long refused to clarify what kinds of information it sweeps up under the rubric of ECTR, a phrase that appears in the NSL statute but is not publicly defined anywhere.
Judge Marrero’s decision describes the FBI’s position as “extreme and overly broad,” affirming that “Courts cannot, consistent with the First Amendment, simply accept the Government’s assertions that disclosure would implicate and create a risk.” The Court observed that, according to the government, Mr. Merrill would only be allowed to discuss the kinds of records the FBI demanded in “a world in which no threat of terrorism exists, or a world in which the FBI, acting on its own accord and its own time, decides to disclose the contents of the Attachment.” The Court decisively rejected this position: “Such a result implicates serious issues, both with respect to the First Amendment and accountability of the government to the people.”
(via /.)