Libraries Win Second Round against National Security Letters “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,” Internet Archive founder and digital librarian Brewster Kahle stated May 7, two days after records were unsealed documenting his six-month legal battle to force the FBI to withdraw a National Security Letter because it sought details of several patrons’ archive use without a court order. The disclosure about the existence of Internet Archive v. Mukasey came two days after the records were unsealed about Kahle’s federal complaint against the Justice Department.
As legal counsel representing the digital library, the American Civil Liberties Union and the Electronic Frontier Foundation named themselves as co-plaintiffs because the gag order that has accompanied NSLs since the 2001 enactment of the Patriot Act also forbids legal counsel from
speaking about any aspect of such a case.
The disclosed documents reveal that the FBI issued an NSL to the Internet Archive on November 19, 2007, seeking the patrons’ names and contact information and “all electronic mail header information (not to include message content and/or subject fields).” Kahle responded December 14, 2007, with a First Amendment challenge to the constitutionality of serving an NSL on a library. “The FBI cannot demand records from libraries [under the reauthorized Patriot Act], unless they are providers of wire or electronic communication services. The archive is not a provider,” EFF Senior Staff Attorney Kurt B. Opsahl wrote the agency three days later.
The complaint never became a full-fledged lawsuit because Opshal offered the FBI a deal: “If the government is willing to withdraw the NSL, including the nondisclosure order, the archive will voluntarily dismiss the lawsuit.” The FBI apparently agreed to negotiate, and reached a
settlement agreement April 21 in which the NSL was withdrawn but the case itself remained under court seal until the Justice Department and the plaintiffs agreed on how relevant documents were to be redacted.
Thanking the plaintiffs for “their brave stand against this unconstitutional federal intrusion,” American Library Association President Loriene Roy said May 7, “While librarians fully support the efforts of law enforcement in legitimate investigations, those efforts must be balanced against the right to privacy.” Roy went on to call for the passage of the National Security Letters Reform Act of 2007 (H.R.
3189) “for meaningful Congressional oversight of these risky law enforcement tools.”
ACLU staff attorney Melissa Goodman noted, “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 response, John Miller of the FBI’s Office of Public Affairs said,
“National Security Letters remain indispensable tools for national security investigations and permit the FBI to gather the basic building blocks for our counterterrorism and counterintelligence investigations.”
The Internet Archive is the third known instance of an NSL challenge, and became public two years after four Connecticut librarians successfully defended patron privacy from a similar NSL demand.
The American Library Association as well as its Freedom to Read Foundation filed amicae briefs in an unrelated challenge by an Internet Service Provider to NSL gag provisions; Judge Victor Marrero of the U.S.
District Court for the Southern District of New York overturned the entire NSL statute September 7, 2007, and the Justice Department is scheduled to offer oral arguments in June before the Second Circuit Appeals Court seeking to reverse Marrero’s ruling.
Recently Obama Signed a One Year Extension To The Patriot Act.
It does not take much knowledge of history to understand how a corrupt U.S. Government could use National Security Letters under the Patriot Act—As A Political or Economic Weapon.
Currently in the name of fighting terrorism, U.S. Government can use National Security Letters to search a Citizen’s private information and records without having to provide specific facts—the person’s information sought pertains to a foreign power or agent of a foreign power. Government can impose National Security Letters without probable cause on your employer, your business client(s) credit card providers, even your relationships. After you receive a National Security Letter, under current law you can’t tell anyone. National Security Letters if used by a tyrannical U.S. Government, could be very threatening to Americans when you consider methods used by other governments. For example in Nazi Germany, the Gestapo routinely targeted and damaged business people and companies that refused to support the Nazi Government by—interrogating their customers—about them. Not surprisingly targeted business people and companies found it difficult to make a living after their frightened customers and clients distanced themselves after Gestapo interrogation. Some German corporations with ties to the Reich government used the Gestapo to scare off their business rivals’ associates and customers—to take their business. A corrupt U.S. Government could as easily use National Security Letters in the same manner and to intimidate Americans exercising First Amendment Rights.
Congress needs to pass legislation that prevents Government using National Security Letters to investigate Americans without first demonstrating a clear standard of probable cause.