FBI rescinds secret order for Internet Archive records

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 documents 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."