FBI Withdraws Unconstitutional NSL Served on Internet Archive
On November 26, 2007, the FBI served a National Security Letter (NSL) on the Internet Archive, a digital library. The letter sought personal information about one of the Archive’s users, including the individual’s name, address, and any electronic communication transactional records pertaining to the user. The NSL also included a gag order, prohibiting the Archive and its counsel from revealing the existence of the letter.
In December 2007, the ACLU and the Electronic Frontier Foundation (EFF) filed a lawsuit challenging the letter, as well as the constitutionality of the NSL statute’s gag provisions. The lawsuit charged that the NSL statute’s gag provisions were unconstitutional and that the NSL itself was improper because it exceeded the FBI’s limited authority to issue such demands to libraries. Because of the NSL statute’s strict gag provisions, the ACLU and EFF had to file the lawsuit under seal.
As a result of the unconstitutional gag order that came with the NSL, the Archive’s founder, Brewster Kahle, was barred from discussing the letter and the legal issues it presented with the rest of the Archive’s Board of Directors. The gag also prevented the ACLU and EFF from discussing the NSL with members of Congress, even though an ACLU lawyer who represents the Archive recently testified at a congressional hearing about the FBI’s misuse of NSLs.
In late April 2008, the FBI withdrew the unconstitutional NSL as part of the settlement of the case. In withdrawing the letter, the FBI lifted the gag order that prohibited Kahle and his attorneys at the ACLU and EFF from disclosing the existence of the NSL, allowing this story to become public for the first time. Once the case was settled, the Archive and the FBI jointly moved to unseal the case and filed redacted versions of the key documents on the court’s public docket. The Archive is still prohibited from disclosing some information about the contents of the NSL.
THE INTERNET ARCHIVE
The Internet Archive (www.archive.org) is a digital library, founded in 1996 with the purpose of offering permanent access for researchers, historians, and scholars to historical collections that exist in digital format. Internet Archive’s collections includes texts, audio, moving images, and software as well as archived web pages.
To fulfill its mission, the Archive works with national libraries, museums, universities, and the general public to collect and offer free access to materials in digital format. The Archive has collected snapshots of all public web pages, except those that have opted not to be archived, every two months for the last ten years. In addition, the Archive has digitized archival and educational movies since 1999. The Archive also accepts donated materials from individual patrons.
Over the years, the Archive’s collection has proved valuable to various federal government agencies, including the Department of Justice, the FBI and the Central Intelligence Agency. Many U.S. Attorneys and other law enforcement officials find the Archive a critical resource, and the Archive has regularly received requests for information about its collections, including information stored in the Wayback Machine, a historical archive of websites.
The Archive is very protective of its patrons’ privacy. The only identifying information the Archive collects is the unverified email address supplied by the patron. The Archive does not collect the IP addresses used to submit files to the collections; nor does it collect the IP addresses of those reading, listening or watching its collection.
NATIONAL SECURITY LETTERS
The government uses NSLs to demand access to sensitive records in the custody of Internet service providers, financial institutions, credit reporting agencies, and many other kinds of organizations. In almost all cases, recipients of the NSLs are served with gag orders that prohibit them from disclosing that they have received the letters.
The NSL statute violates the First Amendment because it invests the FBI with the power to censor speech without meaningful judicial review. The statute also violates the principle of separation of powers because it requires courts to rubber stamp gag orders issued by the FBI.
Notably, every time an NSL recipient has challenged an NSL in court, the government has ultimately withdrawn its demand for records. To the ACLU’s knowledge, only 3 NSL recipients have ever challenged an NSL in court; in each case the recipient was represented by the ACLU. One case involved an NSL served on an Internet Service Provider (ISP). Another case involved an NSL served on a group of librarians. In both cases, the judges found the gag orders unconstitutional. In the ISP case, the district court ruled that NSL statute’s gag provisions were unconstitutional and invalidated the entire statute. The U.S. Court of Appeals for the Second Circuit is expected to hear oral arguments in the government’s appeal of that case next month.
Since the Patriot Act was authorized in 2001, relaxing restrictions on the FBI’s use of the power, the number of NSLs issued has seen an astronomical increase. Reports from the Justice Department’s Inspector General reveal that the FBI has issued nearly 200,000 NSL between 2003 and 2006. Multiple investigations have found serious FBI abuses of regulations and numerous potential violations of the law.
FIRST OF ITS KIND
The Archive’s lawsuit was the first known challenge to an NSL served on a library since Congress amended the National Security Letter provision in 2006 to limit the FBI’s power to demand records from libraries.
> Joint Motion to Unseal Case 5/1/2008
> FBI Letter Withdrawing NSL and Gag 4/24/2008
> Settlement Agreement 4/21/2008
> Letter to FBI 12/17/2007
> Petition to Set Aside Demand 12/14/2007
> Brief in Support of Petition 12/14/2007
> Declaration of Brewster Kale 12/14/2007
> Declaration of Kurt Opsahl 12/14/2007
> Complaint 12/14/2007
> Motion to File Case Under Seal 12/14/2007
> Declaration of Ann Brick 12/14/2007
> NSL Issued to the Internet Archive 1/19/2007
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