Internet Archive v. Mukasey
FBI Withdraws Unconstitutional NSL Served on Internet Archive
On November 26, 2007, the FBI served a National Security Letter (NSL) on the Internet Archive, a digital library. The letter sought 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. The NSL also included a gag order, prohibiting the Archive and its counsel from revealing the existence of the letter.
In December 2007, the American Civil Liberties Union and the Electronic Frontier Foundation (EFF) filed a lawsuit on behalf of the Archive challenging the letter, as well as the constitutionality of the NSL statute's gag provisions. The lawsuit charged that the NSL statute's gag provisions were unconstitutional and that the NSL itself was improper, especially in light of the limitations that Congress placed in 2006 on the FBI's authority to seek information from libraries. Because of the NSL statute's strict gag provisions, the ACLU and EFF had to file the lawsuit under seal.
As a result of the unconstitutional gag order that came with the NSL, the Archive's founder and president, Brewster Kahle, was barred from discussing the letter and the legal issues it presented with the rest of the Archive's Board of Directors. 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.
In late April 2008, the FBI withdrew the unconstitutional NSL as part of the settlement of the case. In withdrawing the letter, the FBI lifted the gag order that prohibited Kahle and his attorneys at the ACLU and EFF from disclosing the existence of the NSL, allowing this story to become public for the first time. Once the case was settled, the Archive and the FBI jointly moved to unseal the case and filed redacted versions of the key documents on the court's public docket. The Archive is still prohibited from disclosing some information about the contents of the NSL.
First of Its Kind
The Archive's lawsuit was 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.