While the federal government has wanted access to private electronic information pertaining individuals in its efforts to fight terrorism, the government at the same time has not wished to be transparent to the public about its information gathering techniques. This has been made fairly plain from the fruits of a legal battle that has spanned more than a decade.
The lawsuit resulted from the refusal by Nicholas Merrill, founder of hosted service provider Calyx Internet Access, to comply with a national security letter (NSL) that he received from the Federal Bureau of Investigation as far back as 2004, according to Reuters.
As reported by Reuters, a recent court filing from the lawsuit shows that the FBI has implemented secret power to force Internet and telecommunications companies to provide all sorts of customer information to the FBI. This information has included complete web browsing histories and online purchase histories of individuals.
NSLs reportedly have been in the law enforcement arsenal for some decades, but their breadth and frequency of use increased substantially under the Patriot Act that was enacted after 9/11. NSLs usually are sent along with a broad prohibition preventing companies from revealing the substance of customer information demanded.
BUT, the federal court in the Merrill case has held that the gag on the NSL he received should be removed. Hence, the revelation that the FBI has been seeking customer web browsing histories and online purchase data. Also revealed is that the FBI has been seeking IP addresses of people in certain communication chains and location information on cell-sites. The FBI reportedly responded in its court filings that it is not currently seeking location information pursuant to NSLs.
The chief industry complaint against NSLs is that they allow the government to spy on customers of Internet and telecommunications companies without sufficient transparency and judicial review. Indeed, Merrill himself has been quoted as saying that the release about government activities in his case is important because “the public deserves to know how the government is gathering information without warrants on Americans who are not even suspected by a crime.”
Reuters reports that several thousands NSLs are sent out by the FBI annually and that at one point that number exceeded 50,000 NSLs in one year.
We live, unfortunately, in a world that includes terrorism. And as a result, we are learning the further extent to which our government is gaining access to our private Internet and telecommunications data in its efforts to combat terrorism. Hopefully, terrorism will be prevented while our privacy rights are not trampled to the point of causing us tangible harm.
Eric Sinrod (@EricSinrod on Twitter) is a partner in the San Francisco office of Duane Morris LLP, where he focuses on litigation matters of various types, including information technology and intellectual property disputes. To receive a weekly email link to Mr. Sinrod’s columns, please email him at ejsinrod@duanemorris.com with Subscribe in the Subject line. This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.