[Commons-Law] FBI gag order withdrawn: Archive.org record demand case can now be discussed by Kahle, et al.

[Pranesh Prakash]

>From the EFF:
http://www.eff.org/press/archives/2008/05/06
THE INTERNET ARCHIVE, along with its counsel EFF and the ACLU, successfully
challenged a national security letter issued to the Archive's digital
library. The NSL, which had unconstitutionally gagged the Archive for
months, was withdrawn, and we are now able to bring this story to the public
for the first time. This settlement -- and the extensive dialogue about the
case -- are critical supplements to widespread reports of NSL abuse.


--------------------

May 7th, 2008
FBI Withdraws Unconstitutional National Security Letter After ACLU and EFF
Challenge
Gag Order Lifted on Internet Archive, Allowing Founder to Speak Out for
First Time

San Francisco - The FBI has withdrawn an unconstitutional national security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):
http://www.eff.org/cases/archive-v-mukasey?docs

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

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