OMEN
05-08-2008, 11:44 AM
Decision follows legal challenge by ACLU and EFF
Two civil rights groups on Wednesday claimed a shared victory in getting the FBI to withdraw a national security letter (NSL) issued to the Internet Archive secretly seeking information on a patron of the online library.
The withdrawal of the letter and an associated gag order followed a legal challenge from the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). In a press conference earlier today, the two groups and the Internet Archive said they had reached a settlement agreement with the FBI, under which the latter has withdrawn its NSL and agreed to the unsealing of the case, after a four-month negotiation.
"The shroud of secrecy from gag provisions has distorted the public debate," over NSLs, said Ann Brick, a staff attorney with ACLU's northern California chapter. "It's only because the gag has been lifted that the Archive can serve as an example" to others served with similar letters, she said.
The FBI uses National Security Letters to get information on personal customer records from Internet Service Providers, banks and other financial institutions and organizations. Unlike formal subpoenas, no formal judicial review is required to serve an NSL. According to an FAQ on the FBI's Web site, NSLs can only be used to seek certain transactional information, such as subscriber information, billing records and ISP's log-in information. NSL's cannot be used to acquire the actual content of any communications. The letters have been used widely by the FBI, the CIA and the Department of Defense as a counter-terrorism tool after the Sept. 11 attacks.
The letter that's the subject of the settlement announced today was served by the FBI (download PDF) on the Internet Archive, a non-profit Internet library, last November. The letter basically asked the library to provide the FBI with the name, address, "electronic communication transaction records," transaction and activity logs, and all email header information associated with a patron of the online library.
The FBI letter noted that the information was being sought in connection with a counter-terrorism investigation. It instructed Internet Archive not to disclose the letter to anyone except to legal counsel and to those to whom disclosure was necessary in order to comply with the letter. In addition, the NSL instructed Internet Archives not to take any action that could potentially alert the individual in question of the investigation.
"It was depressing as hell," to receive the letter said Brewster Kahle, founder of Internet Archives. "What made it particularly difficult for us was that I couldn't discuss it with anybody. This whole thing [became] a big mess because of the gag order," Kahle said.
The letter was formally handled by the EFF, which acts as legal counsel to the Internet Archive. In a response to the FBI letter in Dec. 2007 the Archive voluntarily provided some information but also challenged the security letter on the grounds that it was unconstitutional, said Kurt Opsahl, senior staff attorney at the EFF.
Neither Opshal nor any of those present at the press conference would say what information exactly was provided by the Archive to the FBI other than the fact that it was publicly available on the site. They also refused to clarify whether they were asked not to disclose that information as part of their agreement with the FBI, despite repeated questions on both counts.
According to Kahle, the Internet Archive did not and does not collect or store any personally identifiable information beyond an unverified e-mail address that patrons are asked to provide.
Even so, Opshal noted that "there was a very small amount of responsive, non-public information" that Internet Archives had in its possession which it refused to provide to the FBI. He refused to disclose what the information might have been. "We said we were unable to provide that because the NSL statute was unconstitutional and the Archive was not subject to the statute," Opshal said.
This is the first time where an NSL letter was challenged by invoking certain amendments that were made to the statute in 2006 by Congress, said Melissa Goodman, an attorney for the ACLU. Those 2006 amendments limit the FBI's ability to demand certain records from libraries using NSLs, she said.
"It is quite notable that every time someone has challenged an NSL in court, every time there has been the threat of some judicial review, the FBI has withdrawn its demand," Goodman said. In two other cases that the ACLU knows about where NSLs were challenged, the FBI has withdrawn its letters, she said.
"Putting the case in the big-picture context, NSLs basically allow the FBI to demand extremely sensitive information on innocent people, often in total secrecy without judicial review," Goodman said. She noted that the FBI served nearly 200,000 between 2003 and 2006, out of which just three have been challenged in court, she said.
In a statement posted on its Web site, the FBI maintained that NSLs were "indispensable tools" in counterterrorism and counterintelligence investigations. The statement noted Internet Archive's voluntary disclosure of some public information and its refusal to disclose some information that was not public. "As part of the settlement in this case, the FBI withdrew the National Security Letter and all parties have agreed not to disclose certain portions of the NSL, as well as portions of other documents, as part of the settlement agreement," the statement said.
Compworld
Two civil rights groups on Wednesday claimed a shared victory in getting the FBI to withdraw a national security letter (NSL) issued to the Internet Archive secretly seeking information on a patron of the online library.
The withdrawal of the letter and an associated gag order followed a legal challenge from the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF). In a press conference earlier today, the two groups and the Internet Archive said they had reached a settlement agreement with the FBI, under which the latter has withdrawn its NSL and agreed to the unsealing of the case, after a four-month negotiation.
"The shroud of secrecy from gag provisions has distorted the public debate," over NSLs, said Ann Brick, a staff attorney with ACLU's northern California chapter. "It's only because the gag has been lifted that the Archive can serve as an example" to others served with similar letters, she said.
The FBI uses National Security Letters to get information on personal customer records from Internet Service Providers, banks and other financial institutions and organizations. Unlike formal subpoenas, no formal judicial review is required to serve an NSL. According to an FAQ on the FBI's Web site, NSLs can only be used to seek certain transactional information, such as subscriber information, billing records and ISP's log-in information. NSL's cannot be used to acquire the actual content of any communications. The letters have been used widely by the FBI, the CIA and the Department of Defense as a counter-terrorism tool after the Sept. 11 attacks.
The letter that's the subject of the settlement announced today was served by the FBI (download PDF) on the Internet Archive, a non-profit Internet library, last November. The letter basically asked the library to provide the FBI with the name, address, "electronic communication transaction records," transaction and activity logs, and all email header information associated with a patron of the online library.
The FBI letter noted that the information was being sought in connection with a counter-terrorism investigation. It instructed Internet Archive not to disclose the letter to anyone except to legal counsel and to those to whom disclosure was necessary in order to comply with the letter. In addition, the NSL instructed Internet Archives not to take any action that could potentially alert the individual in question of the investigation.
"It was depressing as hell," to receive the letter said Brewster Kahle, founder of Internet Archives. "What made it particularly difficult for us was that I couldn't discuss it with anybody. This whole thing [became] a big mess because of the gag order," Kahle said.
The letter was formally handled by the EFF, which acts as legal counsel to the Internet Archive. In a response to the FBI letter in Dec. 2007 the Archive voluntarily provided some information but also challenged the security letter on the grounds that it was unconstitutional, said Kurt Opsahl, senior staff attorney at the EFF.
Neither Opshal nor any of those present at the press conference would say what information exactly was provided by the Archive to the FBI other than the fact that it was publicly available on the site. They also refused to clarify whether they were asked not to disclose that information as part of their agreement with the FBI, despite repeated questions on both counts.
According to Kahle, the Internet Archive did not and does not collect or store any personally identifiable information beyond an unverified e-mail address that patrons are asked to provide.
Even so, Opshal noted that "there was a very small amount of responsive, non-public information" that Internet Archives had in its possession which it refused to provide to the FBI. He refused to disclose what the information might have been. "We said we were unable to provide that because the NSL statute was unconstitutional and the Archive was not subject to the statute," Opshal said.
This is the first time where an NSL letter was challenged by invoking certain amendments that were made to the statute in 2006 by Congress, said Melissa Goodman, an attorney for the ACLU. Those 2006 amendments limit the FBI's ability to demand certain records from libraries using NSLs, she said.
"It is quite notable that every time someone has challenged an NSL in court, every time there has been the threat of some judicial review, the FBI has withdrawn its demand," Goodman said. In two other cases that the ACLU knows about where NSLs were challenged, the FBI has withdrawn its letters, she said.
"Putting the case in the big-picture context, NSLs basically allow the FBI to demand extremely sensitive information on innocent people, often in total secrecy without judicial review," Goodman said. She noted that the FBI served nearly 200,000 between 2003 and 2006, out of which just three have been challenged in court, she said.
In a statement posted on its Web site, the FBI maintained that NSLs were "indispensable tools" in counterterrorism and counterintelligence investigations. The statement noted Internet Archive's voluntary disclosure of some public information and its refusal to disclose some information that was not public. "As part of the settlement in this case, the FBI withdrew the National Security Letter and all parties have agreed not to disclose certain portions of the NSL, as well as portions of other documents, as part of the settlement agreement," the statement said.
Compworld