FBI backs off in dispute with Internet Archive
The FBI has retracted a demand issued to the operators of the Internet Archive to release information on one of its users. This is the outcome of a legal dispute, which has now been settled out of court, between the Federal Bureau of Investigation and civil rights activists from the American Civil Liberties Union (ACLU) and the Electronic Freedom Foundation (EFF). Brewster Kahle, who runs the Internet Archive and is also on the EFF board, challenged the National Security Letter (NSL), served on him by the FBI, in court. According to a press release from the ACLU, the gagging order imposed on Kahle by the letter has also been rescinded.
The Internet Archive was opened to the public in autumn 2001. Anyone can access any of the billions of web pages saved in the archive since 1996. In November 2007 the archive was served with an NSL demanding that it reveal the name and address of, and any other information it had on, one of its users. Kahle believed that the FBI had exceeded its authority which had been trimmed by revisions to the law in 2006. He provided the investigators with only such information as was already publicly available and took the case to court.
According to the ACLU, the lawsuit is the first known case in which an NSL served on a library has been challenged since the revision of the Patriot Act in 2006. Provisions of the act, an anti-terrorism package passed in the aftermath of the attacks of 11th September 2001, allow the FBI to collect usage data for American citizens from libraries, other institutions and businesses, without judicial supervision and without the knowledge of the individuals involved. The organisations providing the information are gagged from talking about the NSL.
Kahle could not, therefore discuss the matter with other Internet Archive board members or anyone else other than his lawyer. Further, the ACLU and EFF could not take the matter to members of Congress. The ACLU had already successfully gone to court regarding the gagging order element of the NSL in September 2004 and September 2007. The civil rights organisation thinks that the gag is in breach of the right to free speech enshrined in the American constitution and restricts the ability to obtain legal advice.
ACLU lawyer Melissa Goodman considers the FBI’s retreat a victory for the Internet Archive and for the US constitution. According to Goodman, it appears that every time someone served with an NSL has taken the matter to court and required the government to justify itself, the demand for information has ultimately been withdrawn. With no judicial oversight and with recipients silenced, there is, in Goodman’s opinion, nothing to stop the FBI from abusing National Security Letters. Goodman also poses the question of how many NSLs the FBI may have issued which have not been challenged in court.
The extent of this abuse was revealed by the US Department of Justice in March. Between 2003 and 2006, the FBI issued 200,000 NSLs to telecommunications companies and other private organisations such as banks, to demand connection data and other personal user information. The investigators breached legal regulations or internal guidelines in hundreds of cases by, for example, collecting more information than legally permitted or insisting on information without the correct authorisation.