Watchdogs prompt FBI to withdraw 'unconstitutional' National Security Letter
Nick Juliano
Published: Wednesday May 7, 2008

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The FBI has withdrawn an illegal National Security Letter seeking information from an online library and has lifted a gag order that until Wednesday prevented any discussion of the information request.

Lawyers from the American Civil Liberties Union and Electronic Frontier Foundation helped the Internet Archive push back against what they say was an overly broad and unlawful request for information on one of its users. The FBI issued its National Security Letter in November, but ACLU, EFF and Archive officials were precluded from discussing it with anyone because of a gag order they say was unconstitutional.

After nearly five months of haggling, the FBI eventually withdrew its NSL, which requested personal information about at least one user of the Internet Archive. Founded in 1996, the archive is recognized as a library by the state of California, and its collections include billions of Web records, documents, music and movies.

Because the FBI's NSL sought information about what the suspected users were accessing in the digital library, it violated a 2006 update to the NSL authority that prevented access of information about library patrons' activities such as what books they checked out, EFF and ACLU lawyers said. The ACLU is representing NSL recipients in two other cases, but lawyers noted that virtually none of the 200,000 letters issued by the FBI, CIA, Defense Department and other agencies between 2003 and 2006 ever were challenged in court.

The few cases that have gone before a judge all have prompted the FBI to back down, ACLU lawyer Melissa Goodman said.

"It's quite notable that every single time someone has challenged an NSL in court .. the FBI has ultimately withdrawn its record demand," she said during a conference call Wednesday afternoon. "I think that really calls into question how much the FBI really needed that information in the first place."

The ACLU provided details on the other cases in a press release:

NSLs are secretly issued by the government to obtain access to personal customer records from Internet Service Providers, financial institutions, and credit reporting agencies. In almost all cases, recipients of the NSLs are forbidden, or "gagged," from disclosing that they have received the letters. The ACLU has challenged this Patriot Act statute in federal court in two other cases where the judges found the gags unconstitutional: one involving an Internet Service Provider (ISP); the second a group of librarians. In the ISP case, the district court invalidated the entire NSL 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.

Brewster Kahle, founder of the Internet Archive, said his initial reaction to receiving the letter was "nothing but sadness," but he was heartened by the ACLU and EFF's successes in getting the letter withdrawn.

"The goal was to help other recipients of NSLs and other libraries to understand that you can push back on these," he said.

The FBI's letter demanded the "name, address, length of service, and electronic communication transactional records ... and all electronic mail (e-mail) header information," from the Archive about at least one user of the Web site.

Kahle said the Archive didn't keep any private information on its users aside from an unverified e-mail address, so he couldn't have handed any of that information over even if he wanted to. However, he called the FBI's attempts to gag him "horrendous" and unnecessary. He also worried about the overreaching implications of such demands, which prompted him to challenge the FBI's letter.

"As a library we know that we've long protected patrons from government intrusions," he said.

The Archive has cooperated with the government in the past, Kahle and his lawyers said, and they had agreed not to discuss some aspects of the NSL case. Documents posted on the ACLU's Web site are partially redacted. Participants in Wednesday's call would say only that the Archive had handed over some publicly available information to the FBI, but they refused to say what was shared.

EFF attorney Kurt Opsahl, who represented the Archive, would not speculate as to what prompted the FBI to issue the letter in the first place. Nor would he say whether the Archive was subjected to any other Bureau letters.

"As you might imagine, in that there are gag orders," he said, "if there was another NSL, I wouldn't be able to talk about it."