Nicholas Merrill

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Nicholas Merrill
Nicholas Merrill 27C3.jpg
Born United States New York, New York, U.S.
Education Hampshire College
Occupation Executive Director, The Calyx Institute
Employer The Calyx Institute

Nicholas Merrill is the founder of Calyx Internet Access and the Calyx Institute. He was the first person to file a constitutional challenge against the National Security Letters statute in the USA PATRIOT Act.[1]

Education and early career[edit]

Challenging the National Security Letter: Doe v. Ashcroft[edit]

After receiving a National Security Letter 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.[2]

Merrill never complied with the FBI's National Security Letter request, and eventually—several years into the lawsuit—the FBI decided it no longer wanted 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, or even from being publicly identified as the recipient of the NSL.[3]

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.[4]

The Doe v. Ashcroft/Gonzales/Mukasey/Holder 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.[5] 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.[6]

On August 10, 2010, after more than 6 years, Nicholas Merrill was partially released from his gag order and allowed to reveal his identity, although he still cannot reveal what information the FBI sought from him.[7] This was 3 years after Merrill won The Roger Baldwin 'Medal of Liberty'[8] award from the ACLU, which had to present the award to an empty chair at the time. Merrill has founded the nonprofit Calyx Institute to provide education and research on privacy issues.[9]

He held the talk "The importance of resisting Excessive Government Surveillance" at the annual Chaos Communication Congress 2010 from the German Hacker Group Chaos Computer Club in which he told his story of the past 6 years.[10]

Awards and appointments[edit]

See also[edit]


  1. ^ "Doe v. Holder | American Civil Liberties Union". ACLU. 2010-08-10. Retrieved 2010-11-08. 
  2. ^ "Doe v. Holder – Redacted Version of NSL | American Civil Liberties Union". ACLU. 2010-03-26. Retrieved 2010-11-08. 
  3. ^ Stokes, Jon (2009-05-18). "Obama administration reins in FBI's NSL-related gag orders". Ars Technica. Retrieved 2010-11-08. 
  4. ^ Doe, John (2007-03-23). "My National Security Letter Gag Order". Washington Post. Retrieved 2010-11-15. It is the policy of The Washington Post not to publish anonymous pieces. In this case, an exception has been made because the author -- who would have preferred to be named -- is legally prohibited from disclosing his or her identity in connection with receipt of a national security letter. The Post confirmed the legitimacy of this submission by verifying it with the author's attorney and by reviewing publicly available court documents. 
  5. ^ Preston, Julia (2004-09-30). "Judge Strikes Down Section of Patriot Act". The New York Times. Retrieved 2010-11-15. 
  6. ^ Hamblett, Mark (2008-12-16). "2nd Circuit Requires Judicial Review Before Security Letter Gag Order". New York Law Journal. Retrieved 2010-11-08. 
  7. ^ Nakashima, Ellen (2010-08-10). "Plaintiff who challenged FBI's national security letters reveals concerns". The Washington Post. Retrieved 2010-11-08. 
  8. ^ "ACLU Honors NSL Clients with Medal of Liberty | American Civil Liberties Union". ACLU. 2007-06-15. Retrieved 2010-11-08. 
  9. ^ Zetter, Kim (2010-08-10). "‘John Doe’ Who Fought FBI Spying Freed From Gag Order After 6 Years". Retrieved 2010-11-08. 
  10. ^ His talk at the 27c3 timetable, see also 27c3 recordings, 22/01/2011.
  11. ^ Patriot Award: Nicholas Merrill
  12. ^ PopTech Social Innovation Fellows Class of 2012

External links[edit]