WEBVTT

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JACK: There’s a funny story that happened back in 1980 — no, 1888. [Music] There was this undertaker

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guy named Strowger, and when someone died, he would get a telephone call to come take care of

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the body, and business was doing well for him. But then suddenly he started receiving fewer calls.

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Business stopped. But he knew people were dying, so it’s like, what’s going on? See, back then,

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when you called someone on the phone, you would tell the operator who you wanted to call,

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and they had a patch panel where they would connect a physical cable from your phone to

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their phone. It was all manual. What this undertaker figured out is that the lady who

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was working as the phone operator, her husband was trying to start an undertaker business. So,

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anytime somebody would call asking for the undertaker, she would just connect them to

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her husband’s phone. So, this Strowger guy was so upset that she was intercepting his incoming

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calls and rerouting them, and he thought, I bet I could automate her job. So, he set out to work to

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build an automatic way to connect calls from one person to another without the need of an operator,

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and this was the first telephone switch ever invented, in 1889, invented because one guy

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didn't trust humans to connect the calls and decided to use technology to solve his problem.

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[Intro music] These are true stories from the

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dark side of the internet. I’m Jack Rhysider. This is Darknet Diaries.

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JACK:

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For this episode, I sat down and had a talk with Nick Merrill.

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NICK: Let’s begin.

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JACK: Alright. Yeah, and you could have your drink on the table; it’s fine. I don't...

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NICK: I just thought it would make a noise when I put it down or something,

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cause you more editing work.

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JACK: Oh, that’s my whole life. [Crosstalk]

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NICK: I used to work — when I was a kid, I used to work in video and

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film post-production. It was one of my first jobs.

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JACK: So, let’s start in the eighties.

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NICK: So, conscious of that. Yeah.

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JACK: Yeah. What were you doing in the eighties?

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NICK: [Music] I grew up in New York City. At some point I was in Grand Central Station,

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the famous Grand Central Station, and they had amazing news stands back then that had like,

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thousands of titles. I had some time to kill before this train came, and I was looking all

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around, and I found this little, tiny magazine called 2600 Magazine. It’s a hacker magazine.

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I was fascinated by this, and I bought a copy, and I read it cover to cover. I just devoured

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this magazine. It was super interesting. At the end of the magazine they mentioned that

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they did in-person get-togethers, and the one in Manhattan was held in the city court building.

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JACK: Wow, what a special place to be back then. Some legendary hackers were

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knocking about in that city court building back then, and I covered exactly what went

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on in that building in Episodes 168 and 169, titled LOD and MOD. If you want to hear the

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story of these legendary hackers, go back and check out those episodes. But suffice to say,

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Nick had some pretty incredible hackers around him when he was a kid,

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and has been in the hacking scene for decades now. I’ve seen him at DEF CON multiple times.

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NICK: I was pretty young, though, when I went. I was only fourteen. So, I met all these people,

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but I got a sense that there was just a lot going on that I didn't understand,

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so I mostly kept to myself and just listened, picked up a lot of stuff.

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JACK: This is what kick-started his interest in computers. He got an Apple computer,

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started a BBS, and tried to keep up with everyone else who was doing cool stuff

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back then. After high school, he went on to attend college.

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NICK: I was doing computer science and philosophy, both courses at the same time. I remember one of

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my big challenges in school was just deciding exactly what to focus on and then just focusing

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like a laser on that. I wasn't — I didn't feel like that at the time. So, I was like, I want

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to take some art, I want to do some law, I want to study history, and all kinds of other stuff.

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JACK: But his mind was hungry to learn about all kinds of stuff, so he took a

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huge variety of classes. At one point he took a class which really stuck with him.

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NICK: I took a constitutional law class. This class was a full overview of all the

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landmark cases in constitutional law, going back to the beginning.

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JACK: [Music] Landmark cases are interesting because a Supreme Court decision is basically

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just as powerful as a full-fledged law. Take Miranda rights. I’m sure you've heard ‘you

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have the right to remain silent. Anything you say can and will be used against you in court.’ Well,

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that came from a Supreme Court case called Miranda vs. Arizona. A guy named Ernesto

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Miranda was arrested, questioned for hours, and he confessed to his crime. But later on

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he learned that he didn't have to confess. The Fifth Amendment says

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you have the right to not self-incriminate. So, in court he said, I didn't know I could

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stay silent. I didn't know I could get a lawyer before I could talk to the cops.

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The Supreme Court said, you know what? You're right, Miranda. It’s hard to know what rights

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you have when cops are questioning you constantly, and they should have told

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you that you do have the right to remain silent. It’s your Fifth Amendment right. So, from now on,

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all cops must tell you your rights before they can use anything you say against you. So,

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every cop across the country now informs you of your rights before they arrest you. It’s not a

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law that Congress passed. It’s a rule made in a court, and that’s the power of landmark cases,

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and Nick found all this very fascinating. Eventually, Nick finished school,

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and at the same time, the internet started sprouting websites, which made it way easier

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for people to share ideas and communicate with each other instead of the old-fashioned BBSs. He

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saw a shift from things being for educational purposes to commercial usage of the internet.

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NICK: I remember thinking at the time, this is how you could make real change. This is how you

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could connect people all over the country and all over the world who have one thought or an

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idea or want to do something, and you could — while sitting at home, you could connect

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to millions of people everywhere and get ideas out there. I remember also thinking at the time,

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there’s newspapers, there’s television, there’s radio, and the licensing for television and radio

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is strictly controlled by FCC, and as far as I know, they're not really issue — even

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back then, they didn't really issue any new licenses. All the licenses were out there,

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and you could buy and sell the existing licenses for like, tens of millions of

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dollars. Then they would tell you what words you could say or what words you couldn't say.

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There was a lot of talk at that time about the words that you can't say on the radio

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and what’s too obscene for television and all that. So, I remember thinking that it

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was a tightly controlled media environment, and the bar to entry was incredibly high. It

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was like into the tens of millions. Then here’s the internet, which at that time

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had no regulation at all, and the bar to entry was really low. It was so low that

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when my grandfather died and I inherited literally a few thousand dollars, that was enough for me to

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get in. I ended up starting one of the first internet service providers in New York City.

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JACK: Nick was pretty early to the game when it came to getting on the internet,

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and saw its potential and wanted to get more people involved in this kind of technology. So,

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at the age of twenty, he learned everything he needed to start his own internet service provider.

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NICK: Yeah, this was in my very first apartment on East Tenth Street in the East

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Village in Manhattan, and my apartment had an old, no-longer-working fireplace that was wasted space,

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'cause you couldn't have a fire in it and the chimney was plugged up. But I filled that space

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with a bunch of modems. I ended up getting — I think it was something like eight modems,

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and I had them all in there, and one server running Linux, which was super new at that point.

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JACK: The name of the ISP was called Calyx, and now that he had it stood up,

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he had to go around and talk to people and convince them to be customers.

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NICK: People who I knew in New York City that were trying to do some type of either activism or

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social change or just trying to have some — trying to create a social movement, and things like that.

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So, I went around and I tried to convince them that this internet thing was gonna be huge and

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just a paradigm-changing thing that they needed to find out about. I remember getting a lot of

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pushback from people who were like, no, that’s not for us. That’s for them. We don't really want

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that. I was literally just trying to get people to get e-mail and domain names and just put out a

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newsletter or put up a little web page, something. It was hard to convince people at the time.

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JACK: It’s crazy to think back then people were not interested in spreading their message

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online. But yeah, that was a time when the internet was very geeky and difficult to use,

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and it was new to everyone, so it made sense why people just weren't quite ready yet. He

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kept trying to sell internet access to others, and finally got some customers near the end of 1994.

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NICK: So, one of the first organizations that I got online was called the New York Civil

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Liberties Union, which is the — yeah, it’s the New York branch of the ACLU. You know,

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they were pretty prominent in New York. You always heard about them

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on the news. [Music] They were protecting people’s rights, all that kind of stuff.

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JACK: From there, the ball kept rolling. Word of mouth was spreading, and Nick’s

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ISP was gaining more and more customers. Within two years, he had outgrowed his

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apartment and had to get a bigger place to hold all the modems and servers he needed.

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NICK: Over time, it kind of morphed or transitioned from like an end-user access

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ISP to more of a hosting kind of an ISP and security consulting ISP. By the early 2000s,

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I wasn't giving individuals internet access anymore and I didn't have modems anymore. I

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had fibre optic lines and T3 connections, and I was hosting these big, corporate clients.

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JACK: Can you name a few of these corporate clients?

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NICK: Yeah, I had Mitsubishi Motors of America and IKEA and Snapple Iced Tea.

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JACK: Okay, 'cause you're dealing with larger data links, and so, bigger companies can afford

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it while the home user doesn't — I mean, it was, what, $1,000 a month for a T3 back then, right?

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NICK: Oh, it was like, $1,000 a month for a T1.

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JACK: Yeah.

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NICK: And that was 1.5 megabits. A T3 — for those who don't remember, a T3 — 'cause this is ancient

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history. A T3 was 45 megabits per second, and that was astronomically huge at the time.

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JACK: Yeah, he was selling huge data links at this point to big businesses,

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and not just connections to the internet, but he was also hosting their websites,

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which means he had a bunch of servers and a ton of bandwidth to keep their websites online.

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NICK: But deep down in my heart, I was still trying to work with people that

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were trying to create change in the world. So, I had all kinds of pro-bono clients

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that I charged either nothing or some token amount like $20 or something hosting their

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websites. I still — and NYCLU is still kind of a client of mine at that time.

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JACK: This ISP of his kept growing,

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and things were looking better than ever. He had over a hundred clients at this point.

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NICK: I started working with these advertising agencies that had those big clients,

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and they brought me one and then two and then three and four and five, and pretty soon I had

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another advertising agency. Then I was hosting the Amtrak site and all these other sites. They were

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really big. So, yeah, things were going really well until one day I get a weird phone call.

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JACK: This was the phone call that changed everything. It changed his whole trajectory in

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life, and it would tie him up for the next decade or more and turn him into a whole new person.

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NICK: One day the phone rings, and a person on the other end of the line says, I’m calling from the

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FBI and we have a letter for you. I said something like — I thought about it for like a second,

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and I wasn't even sure that it was for real, and I didn't really quite believe it. So,

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I said, okay, cool, thanks. Then we hung up the call, and that was it. Where my office was,

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was in Lower Manhattan where all the federal buildings are and where all the courts are in

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Lower Manhattan. So, I hung up the call from the supposed FBI person who I didn't really believe,

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and I just went back to work. Within less than an hour, there was a knock

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on the door. It was like — and it was the most official police knock. It was like,

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like that kind of a thing. [Music] I go to the door, and here’s this person that looks like the

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most classic FBI agent from Central Casting; gray hair, side part, some kind of gel hair product,

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tan trench coat, shiny, black patent leather shoes, suit, everything. It was just so obvious

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who it was when I opened the door, 'cause I didn't usually see people like that.

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This guy came inside and reached into his inner pocket of his coat and pulled out an envelope and

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gave it to me and said, here, I have this for you. So, I — in front of him I — I was — instantly was

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like, intrigue. I opened the envelope and I opened this letter and I quickly skimmed it. It basically

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said that the FBI wanted all this information from me about one of the clients of the company,

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and that I was never to tell any person that they had approached me. Then the entire second or third

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page was just a long bullet-point list of all the types of data that they were demanding that I hand

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over to them. At the end of the letter there was a signature, and it said that it was an attorney

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from the FBI. That was what the signature was from. So, thinking back to all the constitutional

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law stuff I learned about and the Fourth Amendment and what it requires to do a search and seizure of

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documents, I thought to myself, well, where’s the — there’s no stamp on this from a court. There’s

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no judge’s signature. This isn't being issued by a court. This is just coming directly from the FBI.

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JACK: He got a letter from the FBI which was asking him to give them data about one

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of his customers, and all they gave him was an e-mail address that the customer had. This was

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someone Nick knew personally, and he found it really surprising that this person was under

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investigation. He knew them, and he thought there was no way they committed some sort of crime that

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the FBI would be investigating. But the letter said you cannot tell anyone about this request

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or letter, anyone. Is this right, though? Can the FBI just ask for data without a warrant or a sign

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off from a judge? The Fourth Amendment says we have the right to privacy, and the government

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needs to have a warrant in order to conduct a search. So, this all felt very strange to Nick.

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NICK: I think I paused when I got to the part on the first page when it said I could never tell

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anyone. I said to him, well, what about my lawyer and what about my business partners? He — in my

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memory he must have been over sixty. He was not a young guy. He seemed pretty senior to

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me. He wasn't like a messenger boy. He said, I don't know. I’m just here to deliver this

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letter. I can't really answer your questions. So, he just kind of gave me the stiff arm and

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refused to engage or tell me anything. So, I just sort of took that for what it was.

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I think I asked to see his ID, and he pulled out a wallet which was really big. It was like — it

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almost was like a check book. He opened it up, and in it he had this very elaborate FBI ID. So,

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I understood that he was the real deal. And that was it. He left.

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JACK: What is this nonsense? You can't tell anyone you got this letter,

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not even your lawyer or business partner? Can you imagine getting such a letter? Like, shh,

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secret FBI stuff. Hand us over your data and don't tell anybody we were here. No explanation

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of what crime this customer did or what’s being investigated or any reason why they want the data.

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NICK: So, I’m left with this letter, and the letter has a whole kind of preamble which explains

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the basis and the authority under which they're asking me for this information. I remember that

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it cited two different things. It cited — and I can remember it by heart even today. It cited

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Executive Order 12333, and it cited Title 18 US Code Section 2709. I was like, well,

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what’s that, you know? I took one semester of constitutional law. I wasn't really familiar

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with the entire federal code. I never really read all the executive orders. So, I decided to try to

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figure out what this was about, because it was pretty confusing to me. So, I started to do a

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little bit of research on the two citings in the letter, the executive order and the federal code,

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and one thing that I figured out was that Section 2709 is the National Security Letter Provision.

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But it had been amended multiple times over the years, and the last time it

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was amended was under the Patriot Act. So, amendments, if you ever read them,

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in Congress when they pass laws, they’ll say, in Section 2709, after the third paragraph,

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insert these two or three more paragraphs that now add additional meaning or things like that. So,

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I started to understand that in order to really grasp the meaning of Section 2709,

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you'd have to read all the different amendments that had ever happened and then piece it all

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together. You'd probably really need to go to a law library, and I didn't know how to do

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that research. The executive order — there was some information about it, but not enough for

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me to truly understand what it implied or what it meant. [Music] I felt really stuck at that point.

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JACK: Yeah, I would be, too. The Patriot Act was passed after two planes flew into buildings in New

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York City on 9/11. It was passed to try to stop terrorism, and it granted the authority for the

00:20:41.920 --> 00:20:49.040
FBI to conduct searches without a warrant. But was the FBI investigating a terrorist plot here?

00:20:49.040 --> 00:20:55.040
Were they using this power as it was intended? Nobody had ever seen these letters before,

00:20:55.040 --> 00:21:00.080
because any time they were sent to someone, that person wasn't allowed to tell anyone else. So,

00:21:00.080 --> 00:21:06.880
these letters were entirely out of the public eye. The only people who knew they existed was the FBI

00:21:06.880 --> 00:21:14.320
and the people that the FBI gave it to. The letter is called a national security letter, or NSL.

00:21:14.320 --> 00:21:21.360
NICK: I think if I recall back, it may have been dated several days before when

00:21:21.360 --> 00:21:26.960
I actually got it. So, that sort of to me implied that it wasn't super time

00:21:26.960 --> 00:21:31.760
sensitive. It wasn't like, a nuclear bomb’s gonna go off in ten minutes;

00:21:31.760 --> 00:21:37.680
you better do this or we're all gonna die. It was more like they weren't in such a hurry. I

00:21:37.680 --> 00:21:41.800
think that it was dated a week before they actually showed up. So, I was like, okay.

00:21:41.800 --> 00:21:45.600
JACK: So, he sat down and looked at the letter closer. Under his interpretation,

00:21:45.600 --> 00:21:50.960
this letter violated three of this constitutional rights. The First Amendment is your right to

00:21:50.960 --> 00:21:54.960
free speech. This letter suppressed his speech. He wasn't allowed to talk about

00:21:54.960 --> 00:21:59.680
this letter. The Fourth Amendment is your right to privacy unless the government has a warrant,

00:21:59.680 --> 00:22:03.680
and there was no warrant, just a letter that came off some random printer in the

00:22:03.680 --> 00:22:08.480
FBI’s office. He thought if he can't tell anyone, then that includes telling a lawyer,

00:22:08.480 --> 00:22:12.960
and if the government is restricting your right to get a lawyer, then that would violate the Fifth

00:22:12.960 --> 00:22:17.920
Amendment. Remember the Miranda rights that the cops have to tell you that you have a right to a

00:22:17.920 --> 00:22:22.640
lawyer? That comes out of the Fifth Amendment. Was this letter saying he has no right to a

00:22:22.640 --> 00:22:29.280
lawyer? It’s really tricky because he wasn't being charged for a crime. He was more of a witness,

00:22:29.280 --> 00:22:34.560
and not even to a crime, but just to someone who the FBI was interested in.

00:22:34.560 --> 00:22:40.400
NICK: So, eventually I thought about it and I thought about it, and I think the big — the

00:22:40.400 --> 00:22:47.360
first big light-bulb-over-my-head moment was they — the letter commanded me to never tell

00:22:47.360 --> 00:22:53.920
any person. But I was like, whatever, I can still talk to a lawyer. They can't tell me that I can't.

00:22:53.920 --> 00:23:00.400
That part I was very clear on from all the law I had studied. There’s no such thing as denying you

00:23:00.400 --> 00:23:08.720
the right to counsel. So, I think what helped me also was that the lawyer that I used at the time,

00:23:08.720 --> 00:23:14.800
before he was a lawyer, he was my friend and I knew him really well for a long time,

00:23:14.800 --> 00:23:23.280
for a bunch of years. So, I reached out to him and I asked if we could just meet in person.

00:23:23.280 --> 00:23:29.040
When I met with him in person, I showed him this letter and I said, you know, hey,

00:23:29.040 --> 00:23:36.000
you know I’m not a lawyer, but my understanding of how search and seizure works is you have to

00:23:36.000 --> 00:23:41.120
go to court, and they haven't gone to court. They're telling me I can never tell anyone,

00:23:41.120 --> 00:23:50.320
but here I am telling you. What’s this all about? My lawyer said, I agree with you.

00:23:50.320 --> 00:23:56.880
This doesn't seem right. This doesn't seem legal. But he kind of demurred and said something like,

00:23:56.880 --> 00:24:02.320
I’m a business lawyer. I do leases and I do business contracts and this and that,

00:24:02.320 --> 00:24:09.360
and I’m not a constitutional rights attorney, and this is a bit over my pay grade, so I think

00:24:09.360 --> 00:24:15.360
we should seek a little bit more expert opinions on what to do about this. I said to him, well,

00:24:15.360 --> 00:24:19.680
one cool thing is that the New York Civil Liberties Union are my client, and I host

00:24:19.680 --> 00:24:26.000
their website. So, maybe we can call them. He was like, yeah, perfect. Let’s call them. So,

00:24:26.000 --> 00:24:34.800
he and I sat there, and we picked up the phone and we called the New York Civil Liberties Union.

00:24:34.800 --> 00:24:42.320
Because they knew who I was, right on that first phone call, instead of them just taking down a

00:24:42.320 --> 00:24:46.480
memo and putting it on a stack of all the people that had called in that day, on that

00:24:46.480 --> 00:24:54.320
first phone call I got put on the phone with a legal director of the NYCLU. Once we kind of

00:24:54.320 --> 00:25:03.520
described that I had received this letter and the vague outline of what it said, [music] I was told

00:25:03.520 --> 00:25:13.000
to get in a taxi right now, go to their office immediately, and bring the letter. So, I did.

00:25:13.000 --> 00:25:18.560
JACK: He was very nervous on the ride there. The tone of all this was very serious,

00:25:18.560 --> 00:25:23.160
and he was wondering if he’s doing the right thing or getting himself in serious trouble.

00:25:23.160 --> 00:25:31.920
NICK: When I got there I met with the legal director who I had not met previously. He

00:25:31.920 --> 00:25:37.520
looked at the letter, he read the letter, and then he asked me, would it be alright if he

00:25:37.520 --> 00:25:42.640
called in another one of his colleagues from the national ACLU, who he said are just on the next

00:25:42.640 --> 00:25:50.000
floor. I said — I thought about it for a minute. I said okay, but in my mind I’m thinking, okay,

00:25:50.000 --> 00:25:57.040
this letter said you can never tell any person. So, the first thing I did was I told my lawyer,

00:25:57.040 --> 00:26:02.400
and now he recommended that I tell another lawyer. So, now I’ve broken it twice. Now

00:26:02.400 --> 00:26:09.040
he’s asking if he can bring a third person in. So, now I’m breaking it a third time. In my mind

00:26:09.040 --> 00:26:15.280
I’m just see-sawing back and forth between like, well, they can't tell me I can't have a lawyer,

00:26:15.280 --> 00:26:22.160
but at the same time they're saying that all the constitutional rights and habeas corpus

00:26:22.160 --> 00:26:27.600
and all that stuff doesn't matter anymore because we're at war and it’s an existential danger. So,

00:26:27.600 --> 00:26:31.360
I was just a little bit worried about what the ramifications of this would be.

00:26:31.360 --> 00:26:40.160
I said okay, the other colleague could come chat with us. So, this younger fellow came down. He

00:26:40.160 --> 00:26:49.120
was a super smart attorney from ACLU, and he looked at this letter and was just a little bit

00:26:49.120 --> 00:26:56.640
shocked. I’ve since had discussions with them about what they were thinking at that time,

00:26:56.640 --> 00:27:05.280
and understood that they knew that national security letters were being used, but nobody had

00:27:05.280 --> 00:27:11.680
ever brought them one and they had never seen one. No copy of one had ever become public before. So,

00:27:11.680 --> 00:27:16.080
it was the first time they had ever seen it and understood the language used in it and

00:27:16.080 --> 00:27:25.760
understood how they were being used. So, to them it represented this amazing opportunity because

00:27:25.760 --> 00:27:31.760
you can't challenge something unless you can show that it’s happened,

00:27:31.760 --> 00:27:40.400
and you have to prove standing in court. So, they thought, wow, this is an opportunity to

00:27:40.400 --> 00:27:47.120
challenge the constitutionality of this type of — what I would call an illegal search.

00:27:47.120 --> 00:27:53.200
JACK: Whoa, this just escalated really fast. The ACLU was like, ready for battle the moment they

00:27:53.200 --> 00:27:58.000
saw this, ready to sue the government and ride or die with Nick. They wanted to challenge the

00:27:58.000 --> 00:28:03.200
legality of this FBI letter, and never had the chance to do it before because nobody’s ever seen

00:28:03.200 --> 00:28:07.360
this thing before. They were already pulling up their sleeves, coming up with a plan of attack,

00:28:07.360 --> 00:28:12.720
and they were so excited about this opportunity that they said they'd represent him for free.

00:28:12.720 --> 00:28:18.560
Because in their mind, fighting this could result in a landmark case, and those are rare,

00:28:18.560 --> 00:28:23.280
and some lawyers would love a shot at creating a landmark case to change laws that they think

00:28:23.280 --> 00:28:29.360
are unjust. So, the ACLU told Nick, let’s fight this, [music] and they started preparing to sue

00:28:29.360 --> 00:28:34.640
the government, and they were going to claim that this letter violated three constitutional rights.

00:28:34.640 --> 00:28:38.960
The Fourth Amendment violation is particularly interesting here because of why the Fourth

00:28:38.960 --> 00:28:44.160
Amendment was made in the first place. During colonial times when New England was under British

00:28:44.160 --> 00:28:51.040
rule, the king of England issued what’s called Writs of Assistance to British soldiers, which

00:28:51.040 --> 00:28:56.640
granted the British soldiers the right to be able to search any home at any time without specifying

00:28:56.640 --> 00:29:02.160
what they were looking for and without probable cause. So, British soldiers had carte blanche

00:29:02.160 --> 00:29:07.600
access to search anyone’s personal belongings at any time. There was absolutely no right to

00:29:07.600 --> 00:29:15.120
privacy in New England at the time. But after the colonists beat the British in the war and

00:29:15.120 --> 00:29:22.400
declared independence, that’s when they decided that it’s very important to preserve our privacy.

00:29:22.400 --> 00:29:32.640
NICK: In reaction to what the American colonists felt were abuses of that kind of executive power

00:29:32.640 --> 00:29:38.000
from the king of England, when they started writing the constitutional amendments,

00:29:38.000 --> 00:29:46.800
they designed the Fourth Amendment to have checks and balances built in so that law enforcement or

00:29:46.800 --> 00:29:53.040
intelligence forces within the government would have to go before a court and prove that either

00:29:53.040 --> 00:30:01.600
a crime had occurred or was likely to occur with evidence. They would have to prove probable cause.

00:30:01.600 --> 00:30:09.760
Based on that, they would have to also say what the thing or things were that they intended to

00:30:09.760 --> 00:30:16.480
seize and exactly where they would find them. So, the idea is that a court is supposed to

00:30:16.480 --> 00:30:23.920
exert some type of oversight authority over these attempts to curtail the rights of individuals. So,

00:30:23.920 --> 00:30:29.760
the problem with the Patriot Act and the national security letter provision amendments that happened

00:30:29.760 --> 00:30:35.920
in the Patriot Act is that they sidestep that whole system of checks and balances and they

00:30:35.920 --> 00:30:44.560
allow not just the FBI but all kinds of government agencies to skip the whole showing probable cause,

00:30:44.560 --> 00:30:50.120
skip the whole system of checks and balances, and just unilaterally go and seize information.

00:30:50.120 --> 00:30:55.440
JACK: Sheesh, how far we’ve come, huh? It’s like we’ve forgotten how bad things can get

00:30:55.440 --> 00:31:02.160
when governments have too much power. There’s a term I learned here called prior restraint,

00:31:02.160 --> 00:31:07.200
which is when someone suppresses your speech before you say something. There have been

00:31:07.200 --> 00:31:13.120
landmark cases in the past where it’s illegal for the government to issue prior restraint to people,

00:31:13.120 --> 00:31:18.160
such as when the Pentagon Papers came out, the New York Times, the Washington Post, got evidence that

00:31:18.160 --> 00:31:22.880
the US government lied about the circumstances that led us into the Vietnam war. When Nixon

00:31:22.880 --> 00:31:29.520
heard that these news outlets got these leaked papers, he demanded they not publish it. So,

00:31:29.520 --> 00:31:36.160
do you comply with an executive order like that or do you challenge it in court? They challenged it,

00:31:36.160 --> 00:31:40.880
and it went all the way to the Supreme Court, and they ruled on the side of the news outlets,

00:31:40.880 --> 00:31:47.200
saying you cannot stop speech before it happens. That is the essence of censorship

00:31:47.200 --> 00:31:53.760
and a direct violation of the First Amendment. So, this provision in the NSL that Nick got that

00:31:53.760 --> 00:31:58.560
says you can't tell anybody, this made the whole letter feel really unconstitutional.

00:31:58.560 --> 00:32:02.560
NICK: We filed a legal challenge, a constitutional challenge,

00:32:02.560 --> 00:32:08.560
to the validity of the national security letter provision of the Patriot Act,

00:32:08.560 --> 00:32:16.400
and because I couldn't talk about it, the case had to be filed under the name John Doe. So,

00:32:16.400 --> 00:32:22.000
it couldn't say my name because that would be admitting that I got it.

00:32:22.000 --> 00:32:23.640
JACK: Who’d you sue?

00:32:23.640 --> 00:32:28.440
NICK: [Music] The case was against the Department of Justice and the FBI.

00:32:28.440 --> 00:32:32.240
JACK: Okay, so, is there a name on the case?

00:32:32.240 --> 00:32:38.400
NICK: Yeah, at the time the attorney general of the United States was John Ashcroft. So,

00:32:38.400 --> 00:32:40.760
the case was called Doe vs. Ashcroft.

00:32:40.760 --> 00:32:45.760
JACK: Oh dang, they're suing the attorney general of the United States, who is the

00:32:45.760 --> 00:32:50.640
head of the Department of Justice. This is about to get good. I’m gonna take a quick

00:32:50.640 --> 00:33:01.840
break here and get some popcorn, because when we get back, the battle begins. So,

00:33:01.840 --> 00:33:06.320
Nick and the ACLU were going to challenge the legality of this letter in court,

00:33:06.320 --> 00:33:10.160
and at this point Nick was about thirty years old, and he was all in.

00:33:10.160 --> 00:33:15.800
NICK: So, it seemed to me that it would be a supremely unpatriotic act to just let this go.

00:33:15.800 --> 00:33:22.960
JACK: Wow, he thought it was an extremely unpatriotic act to comply with a national

00:33:22.960 --> 00:33:28.240
security letter. But I guess you have to feel that strongly about it to try

00:33:28.240 --> 00:33:30.866
to fight the whole Department of Justice over it.

00:33:30.866 --> 00:33:35.520
NICK: [Music] But the irony was that I couldn't really tell anyone. I couldn't say like, hey,

00:33:35.520 --> 00:33:41.280
mom and dad, if I just disappear tomorrow, it’s probably because these people got me. Or,

00:33:41.280 --> 00:33:45.920
I couldn't tell my friends, I couldn't tell my parents, I couldn't tell anyone. So,

00:33:45.920 --> 00:33:51.440
no one knew that this was going on. It was just something that I completely kept to myself.

00:33:51.440 --> 00:33:56.800
JACK: Man, this is why I love making this show, to hear about all these secret things

00:33:56.800 --> 00:34:00.400
that I’m not supposed to know about. We were never supposed to know about

00:34:00.400 --> 00:34:03.360
these letters. We were never supposed to know that Nick got one of these letters,

00:34:03.360 --> 00:34:07.840
but not today. Today we're bringing what’s in the dark to the light. [Music] So, on April 9,

00:34:07.840 --> 00:34:12.560
2004, the ACLU entered the courtroom to represent Nick Merrill in this case.

00:34:12.560 --> 00:34:15.560
NICK: I was not in court. I was never allowed to go to court.

00:34:15.560 --> 00:34:16.800
JACK: You weren't allowed to go to court.

00:34:16.800 --> 00:34:24.160
NICK: No, because then — they were closed court sessions because it was classified stuff,

00:34:24.160 --> 00:34:29.760
and I wasn't allowed to go because then I would have identified myself. So,

00:34:29.760 --> 00:34:32.960
my attorneys went to court without me, and then they told me about what happened,

00:34:32.960 --> 00:34:37.640
and I got to read the transcripts and all that kind of stuff. But I wasn't allowed to attend.

00:34:37.640 --> 00:34:40.960
JACK: So, he had to wait somewhere else for court to finish,

00:34:40.960 --> 00:34:43.560
then the ACLU called him up and told him what happened.

00:34:43.560 --> 00:34:47.560
NICK: What happened was the judge issued a decision saying this is unconstitutional.

00:34:47.560 --> 00:34:53.800
JACK: Boom. There it is. Easy win. NSLs are unconstitutional. The judge ruled it so.

00:34:53.800 --> 00:34:59.200
NICK: There was a lot of news coverage of the case and it was written up in all the papers. It was in

00:34:59.200 --> 00:35:04.560
the New York Times and the Washington Post, and it was all over the AP news wire. But all the stories

00:35:04.560 --> 00:35:11.240
said something like, anonymous internet provider sues government and overturns Patriot Act.

00:35:11.240 --> 00:35:15.200
JACK: Hot dog, he overturned the Patriot Act. Congrats,

00:35:15.200 --> 00:35:21.520
Nick. Geez. But this wasn't the Supreme Court. This was a district court in New

00:35:21.520 --> 00:35:26.000
York, and immediately upon the judge ruling that it was unconstitutional,

00:35:26.000 --> 00:35:31.720
the DOJ appealed the case, meaning they wanted a retrial, but this time in a higher court.

00:35:31.720 --> 00:35:36.960
NICK: What happened was the judge issued a decision saying this is unconstitutional,

00:35:36.960 --> 00:35:45.440
but I’m issuing a stay on the decision. So, what the decision was — it said that

00:35:45.440 --> 00:35:48.880
the government could no longer issue national security letters. They were unconstitutional.

00:35:48.880 --> 00:35:52.080
JACK: The government could no longer issue national security letters.

00:35:52.080 --> 00:35:52.394
NICK: Right.

00:35:52.394 --> 00:35:54.160
JACK: You busted that up.

00:35:54.160 --> 00:35:59.120
NICK: Sort of. That’s the whole thing. Then the judge issued the stay,

00:35:59.120 --> 00:36:08.080
saying that essentially it’s like — he paused his order while the government

00:36:08.080 --> 00:36:13.920
is appealing. The government issued a notice of intent to appeal, and so, he said, okay,

00:36:13.920 --> 00:36:18.720
you can't do it, but I’m pausing the order that says that you can't do it while you appeal.

00:36:18.720 --> 00:36:25.440
JACK: Ah, how maddening, to win the case but then nothing is changed. The Patriot Act was not,

00:36:25.440 --> 00:36:29.280
in fact, overturned, and this meant he was still under a gag order and could not talk

00:36:29.280 --> 00:36:33.520
about any of this. So, they won the first district court and are now advancing to the

00:36:33.520 --> 00:36:37.440
next level to defeat the next boss, which meant that this case is now going to the

00:36:37.440 --> 00:36:42.240
Second Circuit Court of Appeals. Since John Ashcroft was no longer the attorney general,

00:36:42.240 --> 00:36:47.120
the case got changed to Doe. vs. Gonzales, which was the attorney general at the time.

00:36:47.120 --> 00:36:52.480
[Music] A new fighter entered the ring. Four librarians from Connecticut? Yeah, get this;

00:36:52.480 --> 00:36:58.080
the win from the first case made enough news that when a library in Connecticut got issued an NSL,

00:36:58.080 --> 00:37:02.720
the librarians there formed up and said, let’s go to the ACLU and fight this, too.

00:37:02.720 --> 00:37:07.360
NICK: They decided to merge my case with the librarians’ case. So,

00:37:07.360 --> 00:37:09.760
we were now a group of plaintiffs.

00:37:09.760 --> 00:37:15.760
JACK: Great. This is even more ammo. It’s kind of ironic that the FBI told a bunch of librarians

00:37:15.760 --> 00:37:22.160
to hush, but apparently they wanted information on one of the members that came to the library,

00:37:22.160 --> 00:37:26.480
again without a warrant, and again, you can't tell them that you gave them information to the

00:37:26.480 --> 00:37:32.880
FBI. Just do it because we say, because the Patriot Act says we can. So this now bigger

00:37:32.880 --> 00:37:37.760
case went to the Second Circuit Court of Appeals, and again, neither Nick or the

00:37:37.760 --> 00:37:43.320
librarians were allowed in court. This is where the government started to play dirty.

00:37:43.320 --> 00:37:48.800
NICK: One thing that I learned is that it’s never gonna be a level playing

00:37:48.800 --> 00:37:53.520
field when you're an individual and you're challenging the federal government. I mean,

00:37:53.520 --> 00:37:56.080
I guess that’s so obvious. Like, okay, Captain Obvious.

00:37:56.080 --> 00:38:01.200
JACK: During the trial, the government made a change to the law simply clarifying that if you

00:38:01.200 --> 00:38:06.880
get an NSL, yeah, you are allowed to speak to a lawyer. So, they at least made that much clear.

00:38:06.880 --> 00:38:12.560
So, the judge said, well, we can't continue this case now because the law has changed.

00:38:12.560 --> 00:38:16.320
NICK: The law that you started suing about in 2004,

00:38:16.320 --> 00:38:22.880
the 2004 version of the law is different from the current version of the law. Therefore,

00:38:22.880 --> 00:38:26.880
the whole case is moot. You have to go back to step one again and start

00:38:26.880 --> 00:38:31.800
over and challenge it at the same lowest court with this new version of the law.

00:38:31.800 --> 00:38:36.080
JACK: Oh my gosh, going back to the beginning and starting over — ah! Man,

00:38:36.080 --> 00:38:38.960
if this was me, I would have ripped up that original letter and said, okay,

00:38:38.960 --> 00:38:43.200
well, if you think this NSL is no longer valid in courts, then I guess it’s no longer valid

00:38:43.200 --> 00:38:48.040
for me to follow, either. But he didn't do that. He felt set back, but he wasn't done.

00:38:48.040 --> 00:38:52.240
NICK: So, this was already six or seven years of my life under a gag order.

00:38:52.240 --> 00:38:55.360
JACK: Yeah, it’s so maddening he can't tell anyone. Like,

00:38:55.360 --> 00:39:00.320
he can't report this to the news or say something like, look how unfair the government is being.

00:39:00.320 --> 00:39:05.280
He’s under a very strict gag order, because if he tells anyone, he’d be in big trouble.

00:39:05.280 --> 00:39:09.200
Since he wants to win this lawsuit, he needs to do everything right. So,

00:39:09.200 --> 00:39:13.760
him and the librarians and the ACLU went back to that first district court that they already won at

00:39:13.760 --> 00:39:18.960
and saw the same judge again, and that same judge declared that NSLs are still unconstitutional,

00:39:18.960 --> 00:39:24.320
of course. But a court case like this takes a ton of time and money and effort.

00:39:24.320 --> 00:39:29.520
But they won it again. The government appealed this case again, so the judge issued a stay,

00:39:29.520 --> 00:39:34.400
which means nothing is actually changed until the appeal process is complete. This brought

00:39:34.400 --> 00:39:39.360
them back to the Second Circuit Court of Appeals again, which is where they were forced to start

00:39:39.360 --> 00:39:44.080
over last time. But at this point there was yet another attorney general, so this case was renamed

00:39:44.080 --> 00:39:50.400
to Doe vs. Mukasey, and that court case they won, too. Well, mostly. The judge declared the

00:39:50.400 --> 00:39:55.760
suppression of speech to be unconstitutional, but again, the judge issued a stay on it,

00:39:55.760 --> 00:39:59.906
which means nothing actually changes until the government finishes their appeal process.

00:39:59.906 --> 00:40:05.600
NICK: [Music] Six or seven years into the suit, the government decided to withdraw the letter from

00:40:05.600 --> 00:40:12.000
me, 'cause I think they saw we were headed to the Supreme Court and they were likely to lose again,

00:40:12.000 --> 00:40:18.560
and if that happened, then it would just be final and it would apply nationally. So,

00:40:18.560 --> 00:40:22.880
the government decided to withdraw the letter. They said, okay, forget the letter. Forget that we

00:40:22.880 --> 00:40:29.908
issued this letter to you. As I mentioned earlier, you have to have standing to bring a lawsuit.

00:40:29.908 --> 00:40:30.680
JACK: Yeah, now you don't have standing.

00:40:30.680 --> 00:40:32.200
NICK: Now you no longer have standing.

00:40:32.200 --> 00:40:36.880
JACK: The way the courts work in America is that you need to be an involved party

00:40:36.880 --> 00:40:41.920
to sue someone. You can't just sue someone on behalf of someone else or for the potential of

00:40:41.920 --> 00:40:47.200
a problem happening. There has to be a problem, and you have to be a part of that problem. Now,

00:40:47.200 --> 00:40:53.200
since he didn't have a letter, he had no ability to take this to court anymore. So,

00:40:53.200 --> 00:40:58.320
he had no choice but to drop this whole crusade, because when the government withdrew the letter

00:40:58.320 --> 00:41:07.520
from him, it essentially meant that they won the case. The lawsuit was no longer valid.

00:41:07.520 --> 00:41:13.200
NICK: But the funny thing was — or, I’m using ‘funny’ in a light way — they

00:41:13.200 --> 00:41:17.183
withdrew the letter but they decided to try to leave the gag order in place...

00:41:17.183 --> 00:41:17.194
JACK: What?

00:41:17.194 --> 00:41:19.200
NICK: …so I still couldn't talk about it.

00:41:19.200 --> 00:41:27.440
JACK: This is so maddening. He was still gagged for life? Yeah, these NSLs would gag you for life,

00:41:27.440 --> 00:41:31.680
because there’s no expiration on when you're allowed to talk about things. If you get an

00:41:31.680 --> 00:41:36.400
NSL for the rest of your life, you're never allowed to tell anyone ever that you got one,

00:41:36.400 --> 00:41:41.520
except your lawyer. So, he went back to the district court to try to remove this gag order,

00:41:41.520 --> 00:41:45.520
but this time just for him, not for the whole country. By this time,

00:41:45.520 --> 00:41:50.800
the attorney general was Holder, so this case changed to Doe vs. Holder.

00:41:50.800 --> 00:41:54.560
NICK: We made a settlement with the government at that point.

00:41:54.560 --> 00:41:57.520
Sometimes I think when people hear settlement, they think that means,

00:41:57.520 --> 00:42:02.400
oh, someone paid someone else. Usually that’s — those are settlements in civil suits. But

00:42:02.400 --> 00:42:07.760
this was different. This was just an agreement. The agreement was I would stop fighting in this

00:42:07.760 --> 00:42:15.360
particular case and they would un-gag me and let me tell the story of what happened. So,

00:42:15.360 --> 00:42:17.800
I felt like I needed to be able to go public with this story.

00:42:17.800 --> 00:42:22.480
JACK: By the time that case was over, Nick was finally allowed to reveal his real name

00:42:22.480 --> 00:42:27.200
and put it on the case. At that point, the attorney general was Loretta Lynch. So,

00:42:27.200 --> 00:42:33.200
this case ended up being called Merrill vs. Lynch, almost like the investment firm. So,

00:42:33.200 --> 00:42:37.760
this cleared up all three of the constitutional violations he faced. When they amended the law,

00:42:37.760 --> 00:42:41.440
they said you can, in fact, talk with a lawyer. So, that fixed the Fifth Amendment.

00:42:41.440 --> 00:42:46.000
When they withdrew the NSL, they were no longer asking for a warrantless search.

00:42:46.000 --> 00:42:50.240
Now that this gag order was removed, that cleared up the First Amendment issue, but again,

00:42:50.240 --> 00:42:55.600
just for him. Everyone else who got these NSLs still were not allowed to talk about them. But

00:42:55.600 --> 00:43:00.240
now that they retracted the NSL and lifted the gag order, he can't fight it in court anymore,

00:43:00.240 --> 00:43:04.880
which in my opinion is such a shady move, because I think they took it back because he

00:43:04.880 --> 00:43:09.360
was probably gonna win in the Supreme Court. The government should be serving the people,

00:43:09.360 --> 00:43:14.400
not fighting them, playing dirty like this to keep the upper hand. The government also

00:43:14.400 --> 00:43:19.920
withdrew their NSL that they gave the librarians, so the librarians didn't have any standing,

00:43:19.920 --> 00:43:27.800
either. [To Nick] And that’s all you can do, right? ‘Cause you no longer have standing.

00:43:27.800 --> 00:43:34.800
NICK: Pretty much, yeah. I mean, what happened, though, I guess afterwards, was that other

00:43:34.800 --> 00:43:39.960
companies started to fight these national security letters, which hadn't been happening previously.

00:43:39.960 --> 00:43:42.800
JACK: Yes; in fact, more people did fight these letters,

00:43:42.800 --> 00:43:45.400
and one person in particular was Cindy Cohn.

00:43:45.400 --> 00:43:47.280
CINDY: Yeah, my name is Cindy Cohn. I’m

00:43:47.280 --> 00:43:50.000
the executive director of the Electronic Frontier Foundation.

00:43:50.000 --> 00:43:56.320
JACK: Executive director. But you are — you've been a lawyer there as well?

00:43:56.320 --> 00:44:02.720
CINDY: Yes, I was the legal director from 2000 to 2015, and I’ve been the executive

00:44:02.720 --> 00:44:12.160
director since 2015 ‘til today. In the — in both capacities I have served as counsel

00:44:12.160 --> 00:44:18.880
in impact litigation trying to push the law in ways that protect people’s privacy and security.

00:44:18.880 --> 00:44:22.080
JACK: In 2007 both Cindy and Nick saw a report

00:44:22.080 --> 00:44:26.400
that got released from the inspector general about these NSLs. It said...

00:44:26.400 --> 00:44:33.440
NICK: Since 2001 through 2005, they had put out hundreds of thousands of these letters.

00:44:33.440 --> 00:44:35.600
JACK: But the thing that surprised me was that

00:44:35.600 --> 00:44:39.680
only 550 people were prosecuted for terrorism in that time.

00:44:39.680 --> 00:44:46.800
CINDY: Correct, correct. So, it just showed you that they were really using this tool

00:44:46.800 --> 00:44:52.000
way broadly compared to how often it was actually being used in ways that I think

00:44:52.000 --> 00:44:57.280
most people would think were reasonable, which is to try to investigate terrorists.

00:44:57.280 --> 00:45:02.560
JACK: Yeah, because if this power was granted in the Patriot Act response to 9/11,

00:45:02.560 --> 00:45:07.280
then it should be used to prevent more terrorist activity, right? If hundreds

00:45:07.280 --> 00:45:12.160
of thousands of letters are being sent which aren't terrorism-related, does that prove the

00:45:12.160 --> 00:45:17.440
government is abusing this power, using it for other reasons, maybe overreaching?

00:45:17.440 --> 00:45:22.640
CINDY: I mean, I just think that it’s important that we have a moment where we decide whether

00:45:22.640 --> 00:45:29.360
these tools that we give the government are worth it, and are they being abused? Are they vulnerable

00:45:29.360 --> 00:45:35.840
to abuse, which NSLs clearly are, and are they in fact being abused? Which these numbers really

00:45:35.840 --> 00:45:42.560
demonstrate. There’s gotta be something going on here, right? The number of people who had their

00:45:42.560 --> 00:45:48.160
information handed over to the FBI versus how many people they actually were able to prosecute shows

00:45:48.160 --> 00:45:51.440
that there’s some kind of disconnect going on here, and I don't think the disconnect

00:45:51.440 --> 00:45:56.320
is there are hundreds of thousands of terrorists running around that they're not catching. I think

00:45:56.320 --> 00:46:02.080
that when you give the government this powerful a tool and you don't put checks and balances on it,

00:46:02.080 --> 00:46:07.600
and in this particular instance you make it secret — and so, you gag the companies that

00:46:07.600 --> 00:46:13.360
are impacted by it from ever telling anybody what happened, it’s just a recipe for abuse.

00:46:13.360 --> 00:46:17.840
JACK: So, Cindy and her legal team at the EFF had seen Nick’s case play

00:46:17.840 --> 00:46:21.120
out and was itching to join the fight, too. If you don't know,

00:46:21.120 --> 00:46:26.000
the EFF is the Electronic Frontier Foundation. It’s an organization dedicated to protecting our

00:46:26.000 --> 00:46:33.105
rights online. After Nick made this whole thing public, someone brought their NSL to the EFF.

00:46:33.105 --> 00:46:37.360
CINDY: [Music] Well, so, the first case we brought forth on a smallish telephone company,

00:46:37.360 --> 00:46:44.640
and they called me and they wanted to fight the NSL that they received. We weren't able

00:46:44.640 --> 00:46:51.680
to reveal their names to the public for six years. We had to fight this secret battle in

00:46:51.680 --> 00:46:57.920
sealed courtrooms and with secret briefs and things like that before we were finally able

00:46:57.920 --> 00:47:03.680
to reveal to the public that our client was a little phone company called CREDO Mobile.

00:47:03.680 --> 00:47:06.040
JACK: Could the client even be in the courtroom?

00:47:06.040 --> 00:47:11.600
CINDY: Yeah, they were in the courtroom, but the courtroom was cleared. The general counsel could

00:47:11.600 --> 00:47:15.640
be in the courtroom, but they weren't able to tell their board of directors what was going on,

00:47:15.640 --> 00:47:22.800
or much less more broadly, and EFF wasn't able to tell its board of directors that we were involved.

00:47:22.800 --> 00:47:25.680
JACK: But that’s so crazy. So,

00:47:25.680 --> 00:47:30.400
this company — only one person in the company knew they were in this lawsuit?

00:47:30.400 --> 00:47:34.400
CINDY: There were maybe three people in the company. There was the president,

00:47:34.400 --> 00:47:39.440
their head of policy, and their general counsel, and probably at least one tech,

00:47:39.440 --> 00:47:44.080
'cause they had to get the information. For us, it was just the lawyers who were involved in the

00:47:44.080 --> 00:47:50.800
case and our legal secretary. We couldn't tell the board of directors or the leadership at EFF

00:47:50.800 --> 00:47:55.680
who our clients were. They knew we were doing a case, but they didn't know on behalf of who.

00:47:55.680 --> 00:48:00.720
JACK: Gosh, not even the board of directors could know that someone got an NSL. This is crazy.

00:48:00.720 --> 00:48:05.280
I really wanted to talk with Cindy about this because she just published a new book called

00:48:05.280 --> 00:48:11.840
Privacy’s Defender, where she documented her battle with NSLs. So, Cindy and her client,

00:48:11.840 --> 00:48:18.000
the telecom provider called CREDO, sued the government over this NSL that CREDO got,

00:48:18.000 --> 00:48:22.680
and guess what? Immediately upon suing the government, the government sued her client back.

00:48:22.680 --> 00:48:23.520
CINDY: They sure did.

00:48:23.520 --> 00:48:26.480
JACK: What is — how? Why would they sue?

00:48:26.480 --> 00:48:33.120
CINDY: I mean, they had some cockamamie theory that they had to as a result of the Mukasey

00:48:33.120 --> 00:48:36.800
decision. It didn't make a lot of sense to us and it didn't make a lot of sense to the

00:48:36.800 --> 00:48:42.720
judge. But they claimed that we were interfering — essentially that our clients were interfering with

00:48:42.720 --> 00:48:54.240
the investigation by seeking to determine whether the NSL was valid or not under the Constitution.

00:48:54.240 --> 00:48:58.960
It was pretty surprising and outrageous, right? I mean, this is a company that was

00:48:58.960 --> 00:49:03.840
gagged. They couldn't tell their own board. They only had several people who could tell.

00:49:03.840 --> 00:49:08.880
They tried to stand up in court, and then they got sued for it and basically called

00:49:08.880 --> 00:49:15.680
kind of un-American in interfering with the investigation. It was really aggressive.

00:49:15.680 --> 00:49:19.840
JACK: Man, what an intimidation move. It’s already scary enough to go into

00:49:19.840 --> 00:49:23.120
battle against the government, but now for the government to choose to go into

00:49:23.120 --> 00:49:27.440
battle against you? The government should be working with the people, not fighting them,

00:49:27.440 --> 00:49:31.120
and they're such a big and scary entity to fight. You've really got to be sure that what

00:49:31.120 --> 00:49:36.000
you're doing is the right thing when you fight the government. Her client did, in fact, think

00:49:36.000 --> 00:49:40.480
this was the right move and wasn't pressured to back down even after being sued by the government.

00:49:40.480 --> 00:49:46.320
CINDY: So, we were hoping to be able to tell our judge in the Northern District of California,

00:49:46.320 --> 00:49:51.200
which goes up to the Ninth Circuit, that the Mukasey court was right that there were problems

00:49:51.200 --> 00:49:55.280
here, but they were wrong about what would fix it, and the only thing that would fix it would

00:49:55.280 --> 00:50:01.680
be to throw the statute out as unconstitutional. So, that was our job, was to try to build on what

00:50:01.680 --> 00:50:10.080
the ACLU and Nick had done. We were able to do that. The initial decision from the judge

00:50:10.080 --> 00:50:15.520
agreed with us not only that the statute was unconstitutional, the NSLs were unconstitutional,

00:50:15.520 --> 00:50:21.440
but that what the Mukasey court had done wasn't sufficient. So,

00:50:21.440 --> 00:50:24.760
that was the initial decision, which was great. It was a great ruling.

00:50:24.760 --> 00:50:29.520
JACK: But even though they won, the judge once again issued a stay, saying while the NSL is

00:50:29.520 --> 00:50:34.720
unconstitutional, nothing actually changes until the government can appeal. So, the case was going

00:50:34.720 --> 00:50:39.200
to have to go to the appeals court next, and they had to wait to see what happened there.

00:50:39.200 --> 00:50:46.320
CINDY: So, just as we won the first case on behalf of CREDO, we had heard from Cloudflare,

00:50:46.320 --> 00:50:50.560
who is a service provider that helps protect against DDOS attacks and things like that.

00:50:50.560 --> 00:50:56.560
Cloudflare had received an NSL, and they saw what we were doing. They didn't know who our

00:50:56.560 --> 00:51:00.160
client was, but they knew that we were fighting this in the courts. So, they came to us and said,

00:51:00.160 --> 00:51:05.200
we got one of these, too. Will you represent us? So, just as we actually got the first

00:51:05.200 --> 00:51:10.240
decision from the judge, the same day we filed on behalf of Cloudflare, and that was already

00:51:10.240 --> 00:51:13.840
in the works beforehand. We didn't really know when the decision was gonna come out,

00:51:13.840 --> 00:51:18.400
but the timing was very kind of advantageous. So, we thought, well, we just won the first one;

00:51:18.400 --> 00:51:21.760
we’ll go back in and we’ll win the second one, and it didn't go that way.

00:51:21.760 --> 00:51:25.440
JACK: So, the EFF started calling these the Alphabet Cases. Since they couldn't

00:51:25.440 --> 00:51:29.360
use their client names, they had to just come up with code names. So, this case with CREDO,

00:51:29.360 --> 00:51:34.800
the telecom provider, was called Case Q, and the case with Cloudflare they called Case Z.

00:51:34.800 --> 00:51:40.440
Strangely, almost immediately upon CREDO winning their first case, they got served another NSL.

00:51:40.440 --> 00:51:48.560
CINDY: Yeah, so right away they issued another one. We were very surprised.

00:51:48.560 --> 00:51:53.920
One of the things I think that signalled to us is that these — the FBI had gotten

00:51:53.920 --> 00:52:01.280
really used to these — this tool and really wasn't ready to stop using it

00:52:01.280 --> 00:52:05.520
even though they had gotten a bad decision, which was — made us feel vindicated that

00:52:05.520 --> 00:52:11.600
we were gonna keep fighting for these, that it wasn't one and done for them. They liked

00:52:11.600 --> 00:52:15.800
having this authority and they were gonna keep pushing. So, we had to keep pushing.

00:52:15.800 --> 00:52:20.160
JACK: Okay, well, another NSL means another lawsuit against the government. So,

00:52:20.160 --> 00:52:25.040
the EFF called that Case W, and now had three lawsuits against the US government,

00:52:25.040 --> 00:52:29.120
declaring these things are unconstitutional and the law should be changed. [To Cindy] So,

00:52:29.120 --> 00:52:33.440
every time you sued the government in each of these cases, the government sued you right back.

00:52:33.440 --> 00:52:37.920
CINDY: Yeah, I think so. They definitely did for the first CREDO case. I think

00:52:37.920 --> 00:52:41.120
they might have stopped at some point because the judge told them not to,

00:52:41.120 --> 00:52:46.120
but they definitely did. ‘Cause she didn't think that was right for them to do.

00:52:46.120 --> 00:52:49.200
JACK: So, just when she felt like she was getting momentum on these cases,

00:52:49.200 --> 00:52:52.080
the government started to play unfair.

00:52:52.080 --> 00:52:54.560
CINDY: Then, while the case was going on,

00:52:54.560 --> 00:53:02.080
Congress actually amended the statute and wrote a lot of those Mukasey processes into it,

00:53:02.080 --> 00:53:09.040
and also said basically that these gag orders couldn't be eternal anymore.

00:53:09.040 --> 00:53:14.880
They are three — up to three years initially, but then there has to be an evaluation about whether

00:53:14.880 --> 00:53:21.440
there’s still an ongoing reason to have the gag, and the FBI is supposed to file a declaration

00:53:21.440 --> 00:53:27.426
about it. If they don't have an ongoing reason to have a gag order, they should lift the gag.

00:53:27.426 --> 00:53:31.760
JACK: [Music] So, because this statute got amended, this meant all her cases had to be

00:53:31.760 --> 00:53:38.560
reset and retried in the lower courts, starting from square one. So, she went back to the lower

00:53:38.560 --> 00:53:43.120
court and saw the same judge she saw before. However, this change they made is actually a

00:53:43.120 --> 00:53:48.240
big step forward, because previously when you got an NSL, you were silenced for life. But now

00:53:48.240 --> 00:53:53.040
they decided to reduce that to three years. However, it’s still very limited of what you

00:53:53.040 --> 00:53:57.560
could say even after that. I think you can say you received an NSL, but you can't say who for.

00:53:57.560 --> 00:54:03.200
CINDY: After the new statute got passed, the court sent us back down to the lower court,

00:54:03.200 --> 00:54:09.840
and Judge Illston, who was the judge who we’d had in the lower court, said, well,

00:54:09.840 --> 00:54:16.080
they fixed it enough. It’s not eternal anymore. We’ve got this process. They're

00:54:16.080 --> 00:54:21.120
not gonna be suing people for seeking this, and you can tell your lawyers. So,

00:54:21.120 --> 00:54:26.880
that’s enough to bring it within the First Amendment, the gag orders in the First Amendment.

00:54:26.880 --> 00:54:32.800
JACK: [Sighs] This was a big blow. The same judge who emphatically thought these NSLs were

00:54:32.800 --> 00:54:39.680
unconstitutional seemed to have lost her courage in her ruling and changed her mind. They tried to

00:54:39.680 --> 00:54:47.840
appeal the decision, but the court basically said, no, it’s over. Go home. That was it for the EFF,

00:54:47.840 --> 00:54:53.760
who tried to fight this, too. After that ruling, the courts were done with them.

00:54:53.760 --> 00:54:59.440
So, the status today is that this is still going on, and we have no idea how many NSLs

00:54:59.440 --> 00:55:04.960
are being issued, and very little has changed since this battle started. We know that Google

00:55:04.960 --> 00:55:10.080
got these NSLs because they also thought it was unconstitutional, and they also sued the

00:55:10.080 --> 00:55:14.160
government. They were able to get as far as the Ninth Circuit Court of Appeals in California,

00:55:14.160 --> 00:55:20.080
but the judge there ruled on the side of the NSL, saying, no, Google, you have to comply with these

00:55:20.080 --> 00:55:27.680
letters. So, even Google couldn't get this to change and was forced to give the FBI whatever

00:55:27.680 --> 00:55:32.840
data they were asking for. Cindy still thinks that more needs to change about these NSLs.

00:55:32.840 --> 00:55:39.360
CINDY: It’s not great. Let me tell you, I’m not happy. I would like NSLs to require

00:55:39.360 --> 00:55:44.560
the FBI to go to a judge first and ask for the judge — show the judge

00:55:44.560 --> 00:55:48.640
what they're doing in their investigation and say, is there enough here for me to go

00:55:48.640 --> 00:55:55.200
to the ISP and ask for this information about a particular person? I don't know

00:55:55.200 --> 00:55:59.520
that it needs to be a full probable cause warrant like the Fourth Amendment requires,

00:55:59.520 --> 00:56:05.200
but there’s plenty of in-between sorts of court orders for this kind of information,

00:56:05.200 --> 00:56:09.520
and it ought to be in one of those categories. That’s what ought to have happened. So,

00:56:09.520 --> 00:56:19.426
we're still far from where it needed to be, but we're also pretty far from what the FBI wanted.

00:56:19.426 --> 00:56:23.120
JACK: [Music] What I learned from Cindy’s book and Nick’s case is that there’s three ways that you

00:56:23.120 --> 00:56:27.920
can deal with this particular issue. You can do legislation, where you petition Congress to change

00:56:27.920 --> 00:56:33.680
the law. We know how hard that is, especially when it comes to such a secretive thing like NSLs.

00:56:33.680 --> 00:56:38.000
There’s just not enough people who know about this to be outraged to make a meaningful petition

00:56:38.000 --> 00:56:42.880
to get this changed. Because these NSLs come with a gag order, if you get hit with one,

00:56:42.880 --> 00:56:47.360
you can't go to Congress and say, hey, look at how terrible of a situation I’m in,

00:56:47.360 --> 00:56:53.040
'cause you're not allowed to tell anybody. So, Congress just doesn't do anything to help us here.

00:56:53.040 --> 00:56:57.120
The second thing is litigation, which is exactly what Cindy and Nick did,

00:56:57.120 --> 00:57:00.720
to go through the court system, which is supposed to be the check and balance

00:57:00.720 --> 00:57:06.880
to laws and has the power to overturn laws and write new laws, but that didn't work for them.

00:57:06.880 --> 00:57:13.040
NICK: Then what’s the third way? The third way is technology. What if we build systems

00:57:13.040 --> 00:57:17.360
that make it harder to spy on people? Why are all the systems that we have

00:57:17.360 --> 00:57:22.520
for communication so transparent and so just open to surveillance?

00:57:22.520 --> 00:57:29.360
JACK: Yeah, it’s a good point. Can technology alone solve this problem? I think so. Just in

00:57:29.360 --> 00:57:34.320
my lifetime there has been an extraordinary boom in math and cryptography, and we could

00:57:34.320 --> 00:57:38.800
do things now that we’ve never been able to do before. The best encryption today still holds

00:57:38.800 --> 00:57:44.720
up against the best cracking tools around. So, can we create companies in such a manner that

00:57:44.720 --> 00:57:51.760
encrypt user data in such a way that an NSL would be pointless? That’s what Nick set out to do.

00:57:51.760 --> 00:57:59.280
NICK: I learned about the philosophy called privacy by design. Privacy by design means

00:57:59.280 --> 00:58:04.000
that when you're building something, from the first meeting you have when

00:58:04.000 --> 00:58:07.520
you're conceptualizing something, you think about how to make it private.

00:58:07.520 --> 00:58:15.040
I decided to sort of go off in this third direction of technology, thinking that, well,

00:58:15.040 --> 00:58:19.360
I believe in math, I believe in encryption, I believe in all this kind of stuff,

00:58:19.360 --> 00:58:24.440
and I think that we as technologists can do something to make the problem better.

00:58:24.440 --> 00:58:28.400
JACK: So, he pivoted with his company, Calyx. Instead of it being an ISP,

00:58:28.400 --> 00:58:32.000
he turned it into a privacy-focused company which created a bunch of things,

00:58:32.000 --> 00:58:37.520
but the stuff that they're most notable for is the CalyxOS and the Calyx hotspot. See,

00:58:37.520 --> 00:58:41.600
Nick wanted to help as many people as possible become more private, and thought that the best

00:58:41.600 --> 00:58:45.920
way that he could do this was to create a mobile operating system that is private by design. He

00:58:45.920 --> 00:58:50.720
thought this would have the biggest impact since phones are ubiquitous worldwide and everyone’s

00:58:50.720 --> 00:58:56.240
online with them. They're cheap and everywhere. The two dominating mobile OSs today are Apple’s

00:58:56.240 --> 00:59:01.440
IOS and Google’s Android. Since we know they probably both comply with NSLs, any activity

00:59:01.440 --> 00:59:08.000
you do on there means the government can ask for it whenever they want without a warrant. So,

00:59:08.000 --> 00:59:12.640
what about an alternative phone OS that doesn't know anything about its users?

00:59:12.640 --> 00:59:19.040
That way, if the government sent an NSL to Calyx, they wouldn't have a clue who’s using their OS.

00:59:19.040 --> 00:59:23.520
What they did is they took the Android OS, ripped out all the Google stuff so it stopped sending

00:59:23.520 --> 00:59:28.800
telemetry to Google or even Calyx, for that matter. I personally use GrapheneOS on my phone,

00:59:28.800 --> 00:59:34.720
which is very similar. There’s no trace of Google on my phone, and I love it. To fund it, they rely

00:59:34.720 --> 00:59:40.080
on donations, but they also have a hotspot service that they offer, which I actually pay for and use.

00:59:40.080 --> 00:59:44.400
You basically give them a yearly donation and they send you a Wi-Fi hotspot that works good for a

00:59:44.400 --> 00:59:50.160
year, and the hotspot is not connected to my name. I paid for it anonymously using cash at DEF CON,

00:59:50.160 --> 00:59:55.360
and the only thing they have on me is my e-mail address, which is a burner e-mail. This little

00:59:55.360 --> 01:00:00.240
hotspot has been doing great for me for years, and it’s going really well for Calyx, too. I’ve

01:00:00.240 --> 01:00:06.000
seen their booth at DEF CON year after year. But Nick has recently started a whole new project.

01:00:06.000 --> 01:00:13.680
NICK: I started a mobile phone company trying to use the whole principle of privacy by design to

01:00:13.680 --> 01:00:21.360
be more private than the existing phone companies. There’s been a lot of historic stuff that led to

01:00:21.360 --> 01:00:26.800
the phone companies keeping tons of records about people, about their communications,

01:00:26.800 --> 01:00:34.400
about who they communicate with, collecting all kinds of metadata, collecting location data.

01:00:34.400 --> 01:00:41.440
I think that companies can do better. So, I built a company called Phreeli,

01:00:41.440 --> 01:00:46.720
the concept of which is that you can sign up for it and give almost no information

01:00:46.720 --> 01:00:50.560
about yourself. In fact, you can sign up and give as little as just your zip code.

01:00:50.560 --> 01:00:54.800
JACK: First off, he doesn't want to know who his customers are, so he made it impossible

01:00:54.800 --> 01:00:59.520
to connect the dots between who the paying user is and what phone number they have,

01:00:59.520 --> 01:01:06.000
or SIM card. The way he did that is kind of like buying chips in a casino or tokens at an arcade.

01:01:06.000 --> 01:01:10.240
In those places, you go to the cashier, you hand them cash, and they give you chips or tokens to

01:01:10.240 --> 01:01:15.760
play the games. None of the games have any way to know exactly who was playing since

01:01:15.760 --> 01:01:20.320
the tokens aren't connected to your name and can be mixed around with other people’s tokens. So,

01:01:20.320 --> 01:01:24.960
his customers buy sort of an anonymous voucher using their credit card, or if they wish,

01:01:24.960 --> 01:01:30.560
an anonymous way like through cryptocurrency, and then they can redeem that voucher at Phreeli

01:01:30.560 --> 01:01:36.320
in order to get their phone service. So, it’s not possible to trace who had what voucher. At least,

01:01:36.320 --> 01:01:39.920
that’s the simplified version, the way I understand it. He uses a ton of encryption,

01:01:39.920 --> 01:01:43.360
which is really interesting and amazing, but it’s very geeky.

01:01:43.360 --> 01:01:49.200
I just love how tech actually solves these problems. Second, he logs as little as possible,

01:01:49.200 --> 01:01:54.080
which I believe is what he’s legally required to retain, which is zip codes for customers

01:01:54.080 --> 01:01:59.040
for tax reasons and aggregate call data just to show how many minutes were spent calling

01:01:59.040 --> 01:02:03.360
between the northwest and southwest regions of the US. Oh, and I think he monitors how

01:02:03.360 --> 01:02:08.080
much bandwidth users have so that he can charge them appropriately. It’s not perfect privacy,

01:02:08.080 --> 01:02:14.000
but it’s far more private than the average cell phone provider, and that makes me think if this is

01:02:14.000 --> 01:02:19.280
something that Nick can just up and make because he cares about his customers’ privacy that much,

01:02:19.280 --> 01:02:25.200
then how come our cell providers don't take our privacy as seriously as Nick does?

01:02:25.200 --> 01:02:30.880
So, this is what it looks like when technology fights back to solve a problem that Nick saw with

01:02:30.880 --> 01:02:37.440
the NSLs. But it solves way more than just the NSL problem. It enhances privacy for all users.

01:02:37.440 --> 01:02:41.760
So many of these services we pay for, they just sell our data to data brokers,

01:02:41.760 --> 01:02:45.760
and Nick doesn't even have your data to sell it. [To Nick] Yeah, see, Nick,

01:02:45.760 --> 01:02:51.280
we just talked about how you got hit with an NSL and for the government wanting data from

01:02:51.280 --> 01:02:57.520
one of your customers. I have a feeling that — I mean, maybe it’s a conspiracy theory that all

01:02:57.520 --> 01:03:03.600
these ISPs — not ISPs, but mobile carriers have backdoors with the government to allow

01:03:03.600 --> 01:03:07.440
them to see everything. I have a feeling that the government’s gonna come to you knocking on

01:03:07.440 --> 01:03:13.480
your door again asking to see some customer data, and this is all gonna start over all over again.

01:03:13.480 --> 01:03:21.120
NICK: You know, it may. Clearly I’m a sucker for punishment or a slow learner or something like

01:03:21.120 --> 01:03:28.080
that, but I’m actually trying to draw upon all my experiences in the past and make it easier for me

01:03:28.080 --> 01:03:33.840
to actually just be able to say, no, that’s impossible. You can't get blood from a stone.

01:03:33.840 --> 01:03:41.600
I don't know who the customers are, and I can't connect phone numbers to identities. Honestly,

01:03:41.600 --> 01:03:47.520
I wish I could help you solve whatever problem you're trying to figure out, but I simply can't,

01:03:47.520 --> 01:04:02.320
and you're gonna have to figure out another way to track down whoever it is you're looking for.

01:04:02.320 --> 01:04:05.360
Outro: [Outro music] A big thank you to Nick Merrill for coming on the show and telling

01:04:05.360 --> 01:04:11.360
us about NSLs. He was the first person ever to challenge it. What a brave soul. You can learn

01:04:11.360 --> 01:04:19.760
more about his companies by visiting calyx.com and phreeli.com, which is spelled P-H-R-E-E-L-I. Also,

01:04:19.760 --> 01:04:23.600
thank you to Cindy Cohn for coming on and telling us about her NSL fights,

01:04:23.600 --> 01:04:27.360
and you should definitely check out her book, which is called Privacy’s Defender. It’s a great

01:04:27.360 --> 01:04:31.760
book and only one part of it goes into NSLs, and there are other parts that are very interesting

01:04:31.760 --> 01:04:35.640
about a bunch of other times that she sued the government to fight for our digital rights.

01:04:35.640 --> 01:04:42.720
CINDY: Yes, I wrote the book in part because I think there is some really good history of

01:04:42.720 --> 01:04:47.840
hackers and people who care about security more generally really standing up for what’s right,

01:04:47.840 --> 01:04:52.240
doing things as courageous as what Nick did, but even doing things that are — don't quite

01:04:52.240 --> 01:04:57.040
put yourself at that level of risk but really stand up for what’s right. I wanted to collect

01:04:57.040 --> 01:05:00.720
some of these stories and tell them, because I feel like there’s a lot of

01:05:00.720 --> 01:05:06.400
people who feel powerless right now, and while that’s a understandable feeling,

01:05:06.400 --> 01:05:11.880
it’s not really true. There’s a lot of courage in these stories that is important for people today.

01:05:11.880 --> 01:05:15.840
JACK: Once again, that book is called Privacy’s Defender. She wrote this at

01:05:15.840 --> 01:05:20.880
the end of her twenty-six-year-long career at the EFF, because she just stepped down

01:05:20.880 --> 01:05:25.440
as executive director last month. So, thank you for all your work defending our digital rights,

01:05:25.440 --> 01:05:31.520
Cindy. The internet would not be the same if it wasn't for you. Listen, everyone, I’m putting the

01:05:31.520 --> 01:05:36.560
final touches on a second podcast I’m making. It’s a five-part limited series, and the show is going

01:05:36.560 --> 01:05:43.040
to be called Low. I’m so excited about it. I’ve been working on this story for eight years, and

01:05:43.040 --> 01:05:50.400
it’s by far the craziest and darkest and wildest story I’ve ever heard, much less anyone tell me.

01:05:50.400 --> 01:05:54.720
But listen, if you want to be the first to hear it, you need to pitch in by going to

01:05:54.720 --> 01:06:00.000
plus.darknetdiaries.com and sign up for our Plus feed to get bonus episodes and

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an ad-free version of the show, and you'll be able to listen to this new podcast way

01:06:04.720 --> 01:06:10.400
sooner than everyone else. So, please visit plus.darknetdiaries.com and help

01:06:10.400 --> 01:06:15.440
support the show. Thank you. This episode was created by me, the Club Mate addict,

01:06:15.440 --> 01:06:18.800
Jack Rhysider. Our editor is the packet-grabber, Tristan Ledger,

01:06:18.800 --> 01:06:24.400
mixing by Proximity Sound. Our intro music is by the mysterious Breakmaster Cylinder. Remember, the

01:06:24.400 --> 01:06:36.880
cloud is just someone else’s computer who might be sharing your data. This is Darknet Diaries.