Internet Archive Resists NSL

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 called it “an unqualified success that will help other recipients...push back.”

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 permits the FBI to impose a gag order on recipients, without judicial review, but the recipient may challenge a gag order in court.

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.

In legal papers, Kahle 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.