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FBI Lifts Gag Order on Internet Archive

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May 7, 2008

It’s official: the FBI withdrew its national security letter (NSL) demand that it had issued to the Internet Archive last November. NSLs demand personal records like Web site visits and e-mail addresses without prior court approval, and NSL recipients are forbidden, or “gagged,” from telling anyone about the demand. So now that the NSL has been withdrawn, the gag has been lifted, and Brewster Kahle, founder of the Internet Archive, can speak freely about his battle to protect Internet Archive users’ privacy rights.

Represented by the ACLU and the Electronic Frontier Foundation (EFF), Kahle sued the FBI for violating the terms of the 2006 Patriot Act reauthorization, which limits the FBI’s power to issue NSLs to libraries. Senator John Sununu (R-N.H.) defined the reforms (PDF):

What we did in this legislation is add clarifying language that states that libraries operating in their traditional functions: lending books, providing access to digital books or periodicals in digital format, and providing basic access to the Internet would not be subject to a national security letter. There is no National Security Letter statute existing in current law that permits the FBI explicitly to obtain library records. (emphasis ours)

But that’s exactly what the FBI tried to do. The Internet Archive is a digital library recognized by the state of California. The FBI’s NSL demanded 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. Sure sounds like overreaching to us.

Something to note: Every time the ACLU has challenged an NSL in court, the FBI has backed down and withdrawn its records request. (Last September, federal district court Judge Victor Marrero struck down the NSL statute of the Patriot Act. The government has appealed the decision; the 2nd U.S. Circuit Court of Appeals will hear arguments in that case, Doe v. Mukasey, in June.) The Internet Archive case is the third instance. This begs the question: if the FBI is so willing to back down and withdraw their request at the first challenge, did they really need to issue an illegal gag in the first place? And what’s wrong with going the normal law enforcement route and getting a warrant?

In a teleconference today, Brewster called being under a gag order and having to sue the FBI in secret “depressing as hell.” He continued: “It’s depressing that we had to have tens of thousands of dollars worth of pro-bono lawyers fight for us just to be a library.”

You can check out all of the documents that were previously sealed in the case at: www.aclu.org/safefree/nationalsecurityletters/internetarchive.html

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