Law Office Management
Sep. 2, 2008
The Librarian Who Wouldn't Hush
After one recipient of a national security letter challenged an FBI request for data, many expect a broader pushback on these demands for information.
A California nonprofit?s success in getting the FBI to back down on its covert request for information may turn the tide of unquestioned compliance with such requests?-of which an estimated half million have already been obeyed nationwide.
Last November the Internet Archive, a nonprofit digital library that includes films, books, and public Web pages, received a national security letter (NSL) from the FBI seeking a particular user?s name, address, and transactional records.
Government officials from agencies such as the CIA and FBI routinely serve NSLs on banks, credit institutions, and telecommunications companies, requesting personal information about clients. When first authorized in 1986, they were used to ferret out suspected spies. But the 2001 Patriot Act loosened standards for issuing them?-and with that, the number of NSLs issued annually soared from about 8,500 to 50,000.
In a rare move, the San Francisco? based Archive bucked the letter?s request, which included a gag order prohibiting staff and counsel from disclosing the letter?s existence. ?The effect of the gag was much worse than I imagined,? says Brewster Kahle, digital librarian and founder of the Internet Archive. ?Without being able to consult our board of directors or the American Library Association, I had to make a decision about whether to sell out a patron or sue the U.S. government.?
The letter gave him 14 days to produce the information, but instead of complying, Kahle turned to the Electronic Frontier Foundation (EFF) to mount a legal fight. The EFF-?a San Francisco nonprofit that champions online civil rights, and of which Kahle is a board member?-then called in the ACLU, which had successfully defended the only two other known challenges to NSLs.
Although the FBI said in a statement that the NSL had been ?relevant to an ongoing, authorized national security investigation,? the government formally withdrew the request in April. Shortly thereafter the court unsealed the case, loosening the tongues of those involved.
?The settlement shows that the government will back down when challenged,? says Melissa Goodman, a New York?-based ACLU attorney who worked with the ACLU?s Northern California chapter on the case. ?It?s an important lesson?-and should inspire other groups to challenge these things.?
The challenges may already have begun. Both the House of Representatives and the Senate are considering legislation-?the National Security Letters Reform Act (HR 3189 and S 2088)?-that restricts how and when NSLs can be used, as well as limits on gag orders related to them.
Usman Baporia
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