http://www.news.com/8301-10784_3-9938603-7.html
May 7, 2008 3:47 PM PDT
FBI rescinds secret order for Internet Archive records
Posted by Anne Broache 7 comments
The FBI has backed down on a secret request for information about a
user of the Internet Archive digital library, thanks to a legal
challenge from two prominent advocacy groups.
The case, which was brought by the Electronic Frontier Foundation and
the American Civil Liberties Union on behalf of the archive, dates to
last year but only became public on Wednesday. That's because the type
of request involved, known as a national security letter (NSL), is
accompanied by a gag order that forbids the recipient from disclosing
its existence or discussing it with anyone except his attorneys, who
are also gagged. As a result of a settlement, the FBI agreed to
withdraw the national security letter and to lift the gag order.
Internet Archive founder and digital librarian Brewster Kahle
(Credit: Internet Archive)
The 2001 Patriot Act and its subsequent reauthorization dramatically
expanded the FBI's ability to use NSLs, which do not require a court
order and are supposed to be used only in investigations related to
terrorism. Investigators are able to use the tactic to obtain customer
records and logs from Internet service providers, telephone companies,
financial institutions, but Congress in 2006 imposed limits on the
FBI's ability to use NSLs on libraries. The EFF said this is the first
known case to challenge an NSL served upon a library since those legal
changes took effect.
The situation with the Internet Archive began last November, when the
FBI served founder Brewster Kahle with an NSL (PDF) seeking an
unspecified individual's name, address, and "any electronic
communication transactional records" (i.e., not the content of
communications, but logs of activity) pertaining to the user. Kahle,
who is an EFF board member, believed the request was overbroad and
decided to challenge the query in court, handing over only publicly
available do***ents in the mean time.
"The free flow of information is at the heart of every library's
work," Kahle said in a statement Wednesday. "That's why Congress
passed a law limiting the FBI's power to issue NSLs to America's
libraries. 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."
The Internet Archive, founded in 1996, is a repository for archived
Web sites, public domain books, concert recordings, and films, among
other things. It has about half a million registered patrons and,
according to the EFF, does not collect IP addresses of those who
submit items to the collections or of those who read, view, or listen
to its collections.
The Bush administration is hardly a stranger to lawsuits targeting its
use of NSLs, and its challengers have met with some success in recent
years. Last fall, for instance, a federal judge ruled the
surreptitious requests for information were unconstitutional. A
federal appeals court is expected to hear the government's appeal next
month, the EFF said.
In addition, the FBI has taken heat two years in a row from the
Department of Justice's inspector general--and, by extension, members
of Congress--for misusing its NSL powers, including making attempts to
seek and get information that would otherwise require a court order.
The FBI says it has since instituted more internal checks on the
process.
The police agency on Wednesday was quick to defend its actions in the
Internet Archive case and the NSL approach more broadly. Here's a
snippet from a statement released by spokesman John Miller:
"The information requested in the National Security Letter was
relevant to an ongoing, authorized national security investigation.
National Security Letters remain indispensable tools for national
security investigations and permit the FBI to gather the basic
building blocks for our counterterrorism and counterintelligence
investigations. Internet Archive voluntarily provided publicly
available information to the FBI, and identified for the FBI that
information it possessed which was not publicly available. Internet
Archive's refusal to disclose this information formed the basis of its
civil suit, which the parties have now resolved through settlement."
Attorneys for Kahle said they considered the settlement a great
victory. But they again voiced concern that untold numbers of improper
NSLs have gone unchallenged because of their secretive nature.
"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,"
Melissa Goodman, an ACLU staff attorney who worked on the case, said
in a statement. "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."
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