The Archive revealed that it had been served a National Security Letter by the FBI last year about one of its patrons. The San Francisco-based nonprofit organization prevailed after enlisting the help of the Electronic Frontier Foundation and the American Civil Liberties Union.
“We won,” said Internet Archive founder Brewster Kahle. “We can now talk about it, and what it is like to get a secret demand. We hope that this will be useful for the others that will receive these powerful demands.”
Standing Up to the Feds
National Security Letters, or NSLs, have been in existence for some time, but the post-9/11 Patriot Act greatly expanded their use as a tool in the war on terror, with federal law enforcement agencies using them to get phone and Internet records without public knowledge.
“While it’s never easy standing up to the government — particularly when I was barred from discussing it with anyone — I knew I had to challenge something that was clearly wrong,” Kahle noted. “I’m grateful that I am able now to talk about what happened to me, so that other libraries can learn how they can fight back from these overreaching demands.”
A serial entrepreneur who sold one of his Internet startups to Amazon and another to AOL, Kahle founded the Internet Archive in 1996 as a repository for snapshots-in-time of the ever-changing Web. The archive is best known for its Wayback Machine.
Invoking Library Status
The Archive received the NSL in November of 2007. The FBI sought personal information about one of the archive’s users, such as his name, address and other records pertaining to his use of the site, Kahle said.
Kahle recognized that the letter exceeded the FBI’s authority to subpoena records from libraries — even under the Patriot Act — thanks to a 2006 update to the law. He is a member of the board of directors of EFF, which has been an advocate for those served NSLs in the past.
The Archive responded to the letter by handing over only publicly available documents and simultaneously filing a lawsuit challenging the letter’s legality.
The FBI did not respond to a request for comment.
Abuses of Power
The case demonstrates that the FBI and other agencies will back down if challenged, the ACLU said.
“It appears that every time a National Security Letter recipient has challenged an NSL in court and forced the government to justify it, the government has ultimately withdrawn its demand for records,” commented union staff attorney Melissa Goodman. “In the absence of much needed judicial oversight — and with recipients silenced and the public in the dark — there is nothing to stop the FBI from abusing its NSL power.”
While that’s good news, it’s also troubling because it suggests the FBI and others are getting away with issuing NSLs that go beyond the scope of the authorization under federal law, EFF staff attorney Marcia Hoffman told the E-Commerce Times.
“It’s a frightening thing to receive a letter like this, and the odds are good that people are responding and complying because they think they have no choice,” she said.
The use of gag orders further adds to the problem by making it harder for recipients to connect with groups who can advocate on their behalf. Recipients can contact their attorneys, who are then bound by the gag order.
“The question is: How many inappropriate NSLs are being issued and complied with all the time?” she added.
Talking It Out
The gag order part of the NSLs have been under fire in courtrooms in the past. Last fall, a judge ruled in favor of the ACLU in a case that challenged the use of gag orders in such requests when they were sent to Internet service providers.
That case, which also saw the judge cast doubt on the overall constitutionality of NSLs, has been appealed by the government, and the U.S. Court of Appeals for the Second Circuit is scheduled to hear oral arguments next month, Hoffman noted.
The EFF estimates that as many as 200,000 NSLs were issued in the three years after the Patriot Act was passed.
Legislation is pending that would significantly narrow the use of the letters and address the issue of the gag orders.
The more fundamental issue with NSLs remains the lack of oversight, ACLU legislative staff director Caroline Fredrickson told the E-Commerce Times. That group believes judicial review and oversight — much like that applied before traditional search warrants or wiretaps can be served — is needed.
“That’s where the cases all point to, and where either the courts or Congress will have to make changes,” she said. “The authority contained in the statute is too broad and inevitably will bump up against constitutional rights of those who receive the letters and those whose privacy is targeted by them.”