No. 07-6346-CW (N.D. Cal)

FBI Withdraws Unconstitutional NSL Served on the Internet Archive

In December 2007 the Internet Archive along with its counsel the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) filed a lawsuit challenging a national security letter issued to the Archive. (Internet Archive et al v Mukasey et al No. 07-6346-CW (N.D. Cal)). The lawsuit was filed under seal due to the strict non-disclosure rules imposed by the national security letter authority. In April 2008 the government formally withdrew the unconstitutional letter and settled the case and on May 5 2008 the Court unsealed the case allowing this story to become public for the first time.

In the lawsuit the Archive challenged the constitutionality the Federal Bureau of Investigation (FBI)'s authority to impose broad and effectively permanent non-disclosure obligations on those served with NSLs. The lawsuit also challenged the FBI’s authority to issue the NSL to the Internet Archive. The NSL improperly demanded information the FBI was not entitled to obtain because the Archive is a library that is not subject to NSLs since the activity at issue was not the provision of an electronic communication service. The Archive is protected by 18 U.S.C. 2709(f) a 2006 amendment Congress made to the Electronic Communications Privacy Act to limit the FBI's ability to demand records from libraries.

The Internet Archive

The Internet Archive is a digital library founded in 1996 with the purpose of offering permanent access for researchers historians and scholars to historical collections that exist in digital format. Internet Archive’s collections includes texts audio moving images and software as well as archived web pages. The Archive’s founder Brewster Kahle is also the Chairman of the Board of Directors as well as one of the Archive’s Digital Librarians. He is also a member of the EFF Board of Directors.

To fulfill its mission the Archive works with national libraries museums universities and the general public to collect and offer free access to materials in digital format. Some of its partners include the Library of Congress National Archives and the British Libraries. The Archive has collected snapshots of all public web pages except those that have opted not to be archived every two months for the last ten years. In addition the Archive has digitized archival and educational movies since 1999. The Archive also accepts donated material from individual patrons.

Over the years the Archive’s collection has proved valuable to various federal government agencies including the Department of Justice the FBI and the Central Intelligence Agency. Many U.S. Attorneys and other law enforcement officials find the Archive a critical resource and the Archive has regularly received requests for information about its collections (most frequently the Wayback Machine a historical archive of websites).

The Archive is very protective of its patrons’ privacy. The only identifying information the Archive collects is the unverified email address supplied by the patron. The Archive does not collect the IP addresses used to submit files to the collections nor the IP addresses of those reading listening or watching its collection.

The National Security Letter

On November 26 2007 an FBI Special Agent served an NSL on the Internet Archive through its legal representative EFF. The NSL sought information about a user of the Internet Archive including the subscriber’s name address and any electronic communication transactional records pertaining to the user.

The FBI attached a list of information it considers to be “electronic communication transactional records” to the NSL. Pursuant to the settlement the list remains redacted. While the statute does not authorize NSLs for the content of communications the redacted list does not limit itself to only non-content information.

The NSL also included a gag prohibiting the Archive and its counsel from disclosing the existence of the letter. Indeed the Archive was asked not to send the records through regular mail or discuss the substance of the request over the telephone.

As a result of the unconstitutional gag the Archive’s Brewster Kahle was unable to discuss the letter and the legal issues it presented with the rest of the Archive’s Board of Directors. While Congress recently held hearing on the FBI’s misuse of national security letters neither the Archive the EFF nor the ACLU were able to discuss this NSL with legislators. (Both the House and the Senate are currently considering NSL reform legislation).

The Archive’s Response

On December 17 2007 the Archive responded to the NSL voluntarily providing the publicly-available information responsive to the government’s request. However because the NSL authority in the ECPA is unconstitutional and because the Archive is a library the Archive simultaneously filed a lawsuit challenging the NSL in court.

The NSL statute violates the First Amendment by investing the FBI with the authority to suppress speech without meaningful judicial review and definite and objective standards and by failing to require that gag orders issued under the statute be narrowly tailored to a compelling government interest.

The NSL law also violates the principle of separation of powers by effectively transferring to the executive branch the final authority to determine whether speech should or should not be suppressed.

The Archive remained open to settlement and the FBI (through its counsel at the Department of Justice) eventually agreed to withdraw the unconstitutional NSL including the unconstitutional gag imposed with the NSL. The negotiations took approximately four months. 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 public docket.

The Archive’s challenge was the first case to assert the protections for libraries set forth the NSL reforms of 2006. While the government issues tens of thousands of NSLs each year only three NSL recipients - to our knowledge - have ever challenged an NSL and this is the first public instance where a recipient of an NSL successfully pushed back and got the government to withdraw an unconstitutional demand issued under the revised statute.

Facts About the Archive

The Internet Archive has had over 500 000 registered patrons. It is not necessary to become a patron to view or download materials.

The Internet Archive first began archiving the web in 1996.

Some of the films available on the Internet Archive are The Battleship Potemkin The Birth of a Nation and Night of the Living Dead.

Over 400 000 scanned public domain books are made available in an easily browsable and printable format.

The Internet Archive is digitizing around 1 000 public domain books each day.
Live Music Archive holds a collection of almost 50 000 concert recordings in lossless audio formats.

The Prelinger Archive has one of the largest collections of "ephemeral" (advertising educational industrial and amateur) films in the world.

The Internet Archive is a 501(c)(3) nonprofit organization. It receives in-kind and financial donations from a variety of sources including but not limited to: Alexa Internet the Kahle/Austin Foundation the Alfred P. Sloan Foundation the William and Flora Hewlett Foundation and individuals.