Judge In FBI Case Was Forced To Redact His Mocking Of FBI's Ridiculous Arguments

from the now-revealed dept

We’ve already discussed how Nicholas Merrill can finally reveal the ridiculous and almost certainly unconstitutional National Security Letter (NSL) he received 11 years ago while operating a small ISP, Calyx Internet Access. However, with that revelation also came the unredacted version of the judge’s ruling back in October. When we wrote about the October ruling we had mocked many of the obviously ridiculous redactions — including this somewhat iconic redacted footnote:

Thanks to the unredacted decision’s release, we can now see what exactly was redacted and it was mostly judge Victor Marrero totally mocking the DOJ’s ridiculous arguments. Here’s that footnote, by the way: If you can’t read it, it says:

The Court notes that the Leahy Letter does not reveal the “180 day” time period in which the FBI sought order and shipping information from Merrill. The Perdue Declaration argues that if this 180-day period is revealed, then “potential terrorists” could manipulate orders to avoid having those orders fall within the 180 day period…. The Court is not persuaded. A “potential terrorist” does not know when, if ever, the FBI will issue a related NSL. The 180-day period clearly relates to the date Merill received the NSL, and it is hard to imagine any person outside of the FBI having the knowledge about when an NSL might be issued, and changing their behavior as a result.

Many of the other redactions just involve hiding what kind of information is currently being redacted, even as the judge wondered why such information was being redacted. For example, we originally highlighted this section:

And in the unredacted portion, we see that basically the government insisted on redacting the fact that the NSL asked for “subscriber day/evening telephone numbers” and the judge can’t figure out why the FBI thinks this needs to be secret. Elsewhere, the redactions get even more direct in hiding the judge totally mocking the DOJ’s arguments. Take this section for example: We now see it was the judge mocking the ridiculousness of these redactions: If you can’t see that, it’s the judge pointing out the ridiculousness of the FBI already allowing the public to know it can collect records of an “address” and a “telephone number” but not “addresses” and “telephone numbers” (i.e., the plural versions). As the judge noted, but was originally redacted:

… a potential target of an investigation, even a dim-witted one, would almost certainly be able to determine, simply by running through the alphabet, that “telephone number█” could only be “telephone numbers.” Redactions that defy common sense — such as concealing a single letter at the end of a word — diminish the force of the Government’s claim to “good reason” to keep information under seal, and undermine its argument that disclosures of the currently-redacted information in the Attachment can be linked to a substantial risk of an enumerated harm.

The judge also mocks the ridiculous fact that because the FBI is no longer using NSLs to obtain cell-tower location info, that because it might at some point in the future use it, such info should be redacted:

Here’s the unredacted version: Later in the document, the judge was even forced to redact the phrase “sophisticated foreign adversaries” in noting that such people would already know that the FBI could collect such information.

It was pretty clear back in October the redactions were ridiculous (as was the whole gag order in the first place), and now it’s been confirmed.

Filed Under: fbi, national security letter, nicholas merrill, nsl, redactions, surveillance
Companies: calyx internet access