The Defense Refuses to Rest

Passionately nonpartisan, the ACLU fights for endangered rights

| January-February 2011

  • David Schimke

    2009 © Chris Lyons /

  • David Schimke

After all these years, the thing Nick Merrill still cannot get over is that the guy was actually wearing a trench coat.

It all started on a frosty February afternoon in 2004 when Merrill, the president of a website hosting company called Calyx, got a phone call in his lower Manhattan office from the Federal Bureau of Investigation (FBI), informing him that an agent would be stopping by shortly to deliver an envelope. The two-page subpoena contained within, officially referred to as a National Security Letter (NSL), would compel Merrill to turn over all records pertaining to any individuals named.

Since Merrill ran an Internet service provider, that meant relinquishing clients’ personal e-mails, business correspondence, and information regarding what websites they visited and when—mountains of data that, as Merrill says, “paint an incredibly vivid picture of a person.”

Before Merrill could process the conversation, he heard a knock. “The guy at the door was everything you would imagine an FBI agent to be, in the most clichéd sense,” he recalls. “The trench coat, the wallet with the badge. It was surreal.”

The letter, however, was very real and, as his taciturn visitor stood by, Merrill began to digest its contents. Among other things, the government wanted information on an individual who published a post on an indie media website, one of Calyx’s clients. There were no specific reasons given for the inquiry and no documented proof of wrongdoing. There wasn’t even a judge’s signature.

Merrill says he looked at the FBI man “incredulously” and asked if he could seek legal advice. That’s when the bombshell dropped: He could neither consult a lawyer nor discuss the day’s interaction with anyone. Merrill then asked what would happen if he violated the gag order. The agent refused to answer.

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