Internet Archive emerges victorious in national security row with the FBI

A National Security Letter was issued last year to the Internet Archive, seeking information about what it called a "subscriber" in conjunction with an anti-terrorism investigation. The IA challenged the letter, and as we learned yesterday, it won.

Last November, the US Federal Bureau of Investigation served a National Security Letter (NSL) to the Internet Archive, the project to preserve much of the Internet's content at various stages in his history, as a perpetual online museum. The letter appeared to contain boilerplate language that would normally be used in requests to ISPs for national security information, as this one did request certain data about so-called "subscribers."

Signed by Deputy Assistant Director for Counter-terrorism Arthur Cummings, the letter read in part (PDF available here), "In accordance with [US Code], I certify that the information sought is relevant to an authorized investigation to protect against international terrorism or clandestine intelligence activities, and that such an investigation of a United States person is not conducted solely on the basis of activities protected by the First Amendment to the Constitution of the United States."

Currently, adjusted US law includes a looser concept called "United States persons," which may include citizens but also individuals residing here. The letter went on to warn IA that it could not disclose having received to anyone outside its company, with the exception of attorneys. It also said IA had a right to challenge the letter.

That they did, with the help of attorneys from the American Civil Liberties Union and the Electronic Frontier Foundation. While IA did provide the FBI with some information that was publicly available, according to an ACLU statement this morning, it filed a challenge in US District Court in San Francisco, on the basis that the statute permitting the FBI to issue such a gag order was unconstitutional.

"The NSL statute is unconstitutional because its gag and secrecy provisions violate the First and Fifth Amendments," the IA's December 14 complaint read (PDF available here), "and because those provisions are not severable from the remainder of the NSL statute. The statute allows the FBI to issue gag orders prohibiting NSL recipients from disclosing that the FBI has sought or obtained information from them. The gag orders are issued by the FBI unilaterally, without prior judicial review."

The complaint went on to cite the Second Circuit Court of Appeals decision last September which declared certain parts of the US Patriot Act unconstitutional, with regard to wiretapping without warrant. In his concurrence with that decision last September, District Judge Richard Cardamone shared his disagreement with the Justice Dept.'s theory of that case:

"The government advanced the 'mosaic theory' as one of the reasons to support a permanent ban on speech," Judge Cardamone wrote (PDF available here). "That theory envisions thousands of bits and pieces of apparently innocuous information, which when properly assembled create a picture. At bottom the government's assertion is simply that antiterrorism investigations are different from other investigations in that they are derivative of prior or concurrent investigations. Thus, permanent non-disclosure is necessary because, implicitly in the government's view, all terrorism investigations are permanent and unending.

"The government's urging that an endless investigation leads logically to an endless ban on speech flies in the face of human knowledge and common sense: witnesses disappear, plans change or are completed, cases are closed, investigations terminate," the judge continued. "Further, a ban on speech and a shroud of secrecy in perpetuity are antithetical to democratic concepts and do not fit comfortably with the fundamental rights guaranteed American citizens. Unending secrecy of actions taken by government officials may also serve as a cover for possible official misconduct and/or incompetence."

In light of the current stand of the high courts, the FBI agreed to settle the IA's case against the Justice Dept. on April 22, and formally withdrew its request on April 24. The IA and its attorneys were able to reveal that victory just yesterday.

"While it's never easy standing up to the government - particularly when I was barred from discussing it with anyone," read a statement yesterday afternoon from Internet Archive founder Brewster Kahle, "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."