The FBI has agreed to drop its demand that a San Francisco-based Internet library turn over subscriber information, according to court documents unsealed Monday. As part of a settlement, the FBI also agreed that its previously secret efforts could be publicized.
The bureau served the Internet Archive — whose Wayback Machine page allows viewers to see old versions of millions of Web pages — with a national security letter in November 2007, but under the terms of a settlement reached between the two in April, the FBI has withdrawn the letter and agreed to make most of its contents public.
Kurt Opsahl, a staff attorney with San Francisco’s Electronic Frontier Foundation who helped represent the archive, said he believes the victory is only the fourth successful challenge to a national security letter.
The FBI said the letter to the archive was part of a national security investigation and that they “permit the FBI to gather the basic building blocks for our counterterrorism and counterintelligence investigations,” according to a statement by Assistant Director John Miller.
The letters, often compared to subpoenas, don’t need approval from a judge and contain gag orders prohibiting their recipients from even speaking of their existence. The settlement in the Northern District federal court comes less than a year after New York District Court Judge Victor Marrero found national security letters unconstitutional, though his decision is under appeal.
“One of the most important victories here is that we can even say this letter was received,” said Opsahl.
The Internet Archive sued the FBI in December, arguing that the gag orders in the letters violate the First and Fifth amendments. The suit asked the court to find the letters unconstitutional and order the FBI to stop sending them.
After four months of negotiating, the FBI decided to settle, Opsahl said.
“The consequences [of litigating] would be that a second court would find that the statute was unconstitutional and that it was not applicable to libraries under this circumstance,” he said.
The use of national security letters has skyrocketed since 2001, according to the American Civil Liberties Union. A March 2007 report by the Department of Justice’s inspector general said the FBI issued more than 192,000 requests between 2003 and 2006.
In the letter served on the Internet Archive, the FBI sought the name, address and e-mail exchanges of a subscriber to the archive’s services. Opsahl said the archive only gave agents public information that they could have gotten themselves from the nonprofit’s Web site. He said the archive keeps a record only of registered patrons’ e-mail addresses.
Opsahl said that although the 2nd U.S. Circuit Court of Appeals, which is reviewing Marrero’s decision, will now have the most say over the constitutionality of national security letters, he hopes the Internet Archive’s challenge will encourage other groups to take on the FBI.
The archive agreed to redact portions of the letter, but the FBI must prove to Judge Claudia Wilken by Dec. 1 that those sections pose a national security threat, otherwise the entire document will become public. Among the still-secret contents are the name of the targeted subscriber, the name of the FBI agent pursuing the target and more specifics about the kind of information the agent was seeking.
