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Tech Notes

FBI Withdraws Unconstitutional National Security Letter After Challenge
By Electronic Frontier Foundation
May 7, 2008 - 5:24:55 PM

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SAN FRANCISCO, CA -- The FBI has withdrawn an unconstitutional national security letter (NSL) issued to the Internet Archive after a legal challenge from the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). As the result of a settlement agreement, the FBI withdrew the NSL and agreed to the unsealing of the case, finally allowing the Archive's founder to speak out for the first time about his battle against the record demand.

"The free flow of information is at the heart of every library's work. That's why Congress passed a law limiting the FBI's power to issue NSLs to America's libraries," said Brewster Kahle, founder and Digital Librarian of the Internet Archive. "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. I'm grateful that I am able now to talk about what happened to me, so that other libraries can learn how they can fight back from these overreaching demands."

The NSL was served on the Archive -- a digital library recognized by the state of California -- and its attorneys in November of 2007. The letter asked for personal information about one of the Archive's users, including the individual's name, address, and any electronic communication transactional records pertaining to the user.

Kahle, who is also a member of EFF's Board of Directors, decided to fight the NSL because it exceeded the FBI's limited authority to issue such demands to libraries.

The Archive responded to the letter by handing over only publicly available documents and simultaneously filing a lawsuit challenging the letter. This lawsuit is the first known challenge to an NSL served on a library since Congress amended the national security letter provision in 2006 to limit the FBI's power to demand records from libraries.

The NSL included a gag order, prohibiting Kahle from discussing the letter and the legal issues it presented with the rest of the Archive's Board of Directors or anyone else except his attorneys, who were also gagged. The gag also prevented the ACLU and EFF from discussing the NSL with members of Congress, even though an ACLU lawyer who represents the Archive recently testified at a congressional hearing about the FBI's misuse of NSLs.

"This is a great victory for the Archive and also the Constitution," said Melissa Goodman, staff attorney with the ACLU. "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. 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."

"A miscarriage of justice was prevented here because the Archive decided to fight the unlawful demand for information and unconstitutional gag," said EFF Staff Attorney Marcia Hofmann. "The big question is, how many other improper NSLs have been issued by the FBI and never challenged?"

NSLs are secretly issued by the government to obtain access to personal customer records from Internet Service Providers, financial institutions, and credit reporting agencies. In almost all cases, recipients of the NSLs are forbidden, or "gagged," from disclosing that they have received the letters. The ACLU has challenged this Patriot Act statute in federal court in two other cases where the judges found the gags unconstitutional: one involving an Internet Service Provider (ISP); the second a group of librarians. In the ISP case, the district court invalidated the entire NSL statute. The U.S. Court of Appeals for the Second Circuit is expected to hear oral arguments in the government's appeal of that case next month.

Since the Patriot Act was passed in 2001, relaxing restrictions on the FBI's use of the power, the number of NSLs issued has seen an astronomical increase, to nearly 200,000 between 2003 and 2006. EFF's investigations have uncovered multiple NSL misuses, including an improper NSL issued to North Carolina State University.

Last year Representative Jerrold Nadler (D-NY) introduced H.R. 3189, the "National Security Letters Reform Act of 2007." Senator Russell Feingold (D-WI) introduced a Senate bill of the same name (S. 2088). Both bills are aimed at narrowing the statute by enacting limits on when and how NSLs can be used and bringing the gag order provision in line with the Constitution.

In addition to Goodman and Hofmann, attorneys on the case are Jameel Jaffer and Danielle Tully of the ACLU National Security Project, Ann Brick of the ACLU of Northern California, and Kurt Opsahl of EFF.

For the newly unsealed documents (still partially redacted): www.eff.org/cases/archive-v-mukasey?docs

For more information about this case: www.eff.org/cases/archive-v-mukasey

For more information on NSLs: www.eff.org/issues/foia/07656JDB

For this release: www.eff.org/press/archives/2008/05/06

About EFF

The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at www.eff.org/


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