Digital library beats FBI’s secret data demand

The FBI has withdrawn a National Security Letter issued to the Internet Archive after a legal challenge from the Electronic Frontier Foundation and the American Civil Liberties Union, those groups said on a conference call moments ago.

Under a settlement agreement, the FBI has lifted the NSL’s gag and agreed to the case’s unsealing, making all the filings public and letting Archive founder Brewster Kahle speak out for the first time about his battle against the records demand.

kahle.jpg“The FBI served the Internet Archive with a letter last November demanding information about a patron of the Internet Archive,” Kahle said. “I couldn’t discuss it with anybody, I couldn’t bring it to the board, I couldn’t discuss it with the rest of the staff. Even our lawyers couldn’t share information with their peers about what was going on.”

“Gagging librarians is horrendous,” Kahle said. “We don’t think this is necessary and were very happy to be able to speak up now to all librarians and the public.”

The Internet Archive — a nonprofit founded in 1996 and based in San Francisco’s Presidio — is building an Internet library of online books, music, videos and “snapshots” of Web pages, offering permanent access for researchers, historians, and scholars to historical collections that exist in digital format.

The government uses these secret NSLs to access personal customer records from Internet service providers, financial institutions, and credit reporting agencies among other companies. In most cases, recipients are forbidden from disclosing even that they received the letters. The Internet Archive fought this NSL because it believed the letter exceeded the FBI’s limited authority to issue NSLs to libraries; this was the first case to assert protections for libraries that Congress set in 2006’s reauthorization of the USA PATRIOT Act.

EFF senior staff attorney Kurt Opsahl said the FBI’s letter demanded an Archive user’s name, address, length of service, electronic communication transaction history and other data. But the Archive doesn’t collect IP addresses of users who upload and download files, he said, only their unverified e-mail addresses; he said he wouldn’t disclose what information the Archive did give the FBI on this person, other than to say it was publicly available information. Meanwhile, the EFF – joined by the ACLU – sued to challenge the gag order’s constitutionality, and after four months of legal negotiations, the FBI backed down.

ACLU National Security Project attorney Melissa Goodman said about 200,000 NSLs were issued from 2003 to 2006, yet only three including this one have been challenged in court. In each of these three cases, the FBI agreed to withdraw its request; Goodman said this calls into question how important the information was in the first place, and how wide a net the FBI is casting without judicial review, shielded from public eyes.

“The gag orders that are part and parcel of almost every NSL that gets issued are unhealthy in a democracy,” said ACLU of Northern California staff attorney Ann Brick, who noted the Justice Department Inspector General’s audits have found the FBI regularly abuses its NSL power.

Brick also said this secrecy “distorts the public debate over national security letters, including the debate in Congress” – when an ACLU attorney testified before Congress last month about NSLs, he couldn’t even talk about the Internet Archive’s case.

Brick said she hopes this case will inspire more libraries and other organizations to file lawsuits challenging NSL’s constitutionality.

Josh Richman

Josh Richman covers state and national politics for the Bay Area News Group. A New York City native, he earned a bachelor’s degree in journalism from the University of Missouri and reported for the Express-Times of Easton, Pa. for five years before coming to the Oakland Tribune and ANG Newspapers in 1997. He is a frequent guest on KQED Channel 9’s “This Week in Northern California;” a proud father; an Eagle Scout; a somewhat skilled player of low-stakes poker; a rather good cook; a firm believer in the use of semicolons; and an unabashed political junkie who will never, EVER seek elected office.