October 16, 2017

Internet Archive Fights Off National Security Letter

By Norman Oder

  • Lawsuit challenged constitutionality of National Security Letters
  • Also said libraries shouldn’t be subject to NSLs
  • FBI settled without resolving underlying issue

The Internet Archive—a vast collection of web sites and other born-digital files, including the Wayback Machine—may be an unusual library, but it is a library nonetheless, and its adherence to library principles helped lead it to fight successfully a National Security Letter (NSL) seeking information about a library user issued under the USA PATRIOT Act. The Internet Archive’s Brewster Kahle went public this Wednesday, declaring, in a conference call with reporters, the effort “an unqualified success that will help other recipients understand that you can push back on these." 

The Internet Archive, represented by the American Civil Liberties Union Foundation and the Electronic Frontier Foundation, challenged the constitutionality of the NSL, arguing that “its gag and secrecy provisions violated the First and Fifth Amendments.” The case, however, filed in federal court in San Francisco after the NSL was delivered last November 26, never made it to trial. A settlement, in which the FBI agreed to withdraw the letter and make documents public—as long as some redactions remained—meant that no court addressed the underlying constitutionality of the NSL statute.

While the NSL statute was enacted by Congress in 1986, in 2001 the Patriot Act, expanded the FBI’s power to issue NSLs. At first, recipients were prohibited from challenging NSLs; the statute was amended in 2006 to allow for such a challenge. The NSL statute allows the FBI, without judicial review, to impose a gag order on recipients, but the recipient may ask a court to modify or set aside the gag order.

In this case, the FBI sought the “subscriber name, address, length of service, and electronic communication transactional records” related to an archive user. More details have not been made public. Kahle, according to Wired, called the gag order “horrendous,” noting that he couldn’t discuss the case with his board members, wife, or staff. He said his position was in the tradition of librarians protecting the rights of their patrons; indeed, legal papers point out that the Internet Archive is a member of the American Library Association and eligible to receive telecommunications discounts under the Library Services and Technology Act (LSTA).

Kahle, in legal papers, also argued that while the law authorizes the issuance of an NSL to “an electronic communications service provider,” the Internet Archive is not such a provider and that libraries in general are not providers. Kahle noted that the Internet Archive actually stores little nonpublic information; it doesn’t log IP addresses but does keep unverified email addresses for those who choose to provide it, according to Wired.

Assistant Director John Miller of the FBI’s Office of Public Affairs offered a statement that didn’t quite explain why the FBI relented: “The information requested in the National Security Letter was relevant to an ongoing, authorized national security investigation,” he said. “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. As part of the settlement in this case, the FBI withdrew the National Security Letter and all parties have agreed not to disclose certain portions of the NSL, as well as portions of other documents, as part of the settlement agreement.”

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