FBI Loses National Security Letter Case Against Internet Archive

by Tom Burghardt / May 10th, 2008

When the Internet Archive, a project founded in 1996 to create a digital library of the web, was served an illegal National Security Letter (NSL) by the FBI, Archive founder and Digital Librarian, Brewster Kahle, did what any self-respecting defender of free expression would do: he got pissed.

But Kahle did more. He sued the FBI–and won. After a legal challenge from the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) in federal district court in San Francisco, the Bureau was forced to withdraw the NSL and unseal the case, allowing the Archive’s founder to speak out about his battle with autocratic Bushist agents.

The NSL was served on the Archive–a library recognized as such by the state of California–and Kahle’s attorneys in November 2007. The Bureau demanded personal information about one of the library’s patrons, including the individual’s name, address, and any electronic communication records pertaining to the user.

A National Security Letter, an onerous tool deployed by the Bureau to root out suspected “terrorists” and other malefactors, is a covert means by which the state obtains access to personal customer records from Internet Service Providers, banks, other financial institutions and credit reporting agencies without the approval of a judge. In other words, under the guise of a “national security investigation,” NSLs are very sharp hooks for government fishing expeditions.

Recipients are gagged from ever disclosing they have come under the Bureau’s baneful gaze. And since the passage of the viral Patriot Act in 2001 by a servile Congress, the use of these illegal procedures have fed the FBI’s seemingly insatiable demand for private records. Wired magazine reports that between 2003-2006 the Bureau has issued some 200,000 NSLs, often without a shred of legal justification for doing so, nor oversight to rein in their misuse. Ryan Singel writes:

Though FBI guidelines on using NSLs warned of overusing them, two Congressionally ordered audits revealed that the FBI had issued hundreds of illegal requests for student health records, telephone records and credit reports. The reports also found that the FBI had issued hundreds of thousands of NSLs since 2001, but failed to track their use. In a letter to Congress last week, the FBI admitted it can only estimate how many NSLs it has issued.Ryan Singel, “FBI Targets Internet Archive with Secretive National Security Letter, Loses,” Wired, May 7, 2008.

Unfortunately for the Bureau, Kahle, who is also serves on the EFF’s Board of Directors, decided to challenge the NSL because it exceeded the FBI’s limited authority to target libraries during “espionage” or “terrorism” investigations.

According to a joint press release by the ACLU and EFF, Kahle said,

The free flow of information is at the heart of every library’s work. That’s why Congress passed a law limiting the FBI’s power to issue NSLs to America’s libraries. While it’s never easy standing up to the government–particularly when I was barred from discussing it with anyone–I knew I had to challenge something that was clearly wrong. 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.“FBI Withdraws Unconstitutional National Security Letter after ACLU and EFF Challenge,” Press Release, Electronic Frontier Foundation, May 7, 2008.

During a conference call with journalists on Wednesday, Kahle told reporters, “Not being able to talk about it with our board, with my wife, made it very difficult. I can imagine a hurried staffer sticking a gag into a hurried bill. But gags don’t seem to be necessary, and now, what we’ve discovered in practice, gagging librarians is horrendous,” the Washington Post reports.

Kahle said after the court ruling, “This is an unqualified success that will help other recipients understand that you can push back on these.”

As I reported last month, the Bureau actually returned documents they had already obtained in a 2005 terrorism-related case, after North Carolina State University refused to hand over educational records to FBI snoops who issued an illegal NSL against the University.

Why? Because it provided FBI Director Robert Mueller an opportunity to demand Congress grant the Bureau additional powers it wasn’t entitled to, and despite having obtained the documents in question after a federal grand jury issued a subpoena–and University officials had already complied!

While the Internet Archive’s victory against the FBI puts an end to the government’s challenge in this case, the settlement prevents Kahle or his attorneys from discussing what the Bureau was so intent on perusing, even though the FBI was seeking public information–not “state secrets,” nor “evidence” of a “terrorist plot.”

But these days, as the post-Constitutional “New Order” continues to cast a tyrannical pall across the American landscape, even a small victory against those who “work … the dark side,” has merit.

The partially redacted documents on the Internet Archive case are available here.

For more information on NSLs click here.

Tom Burghardt is a researcher and activist based in the San Francisco Bay Area. His articles are published in many venues. He is the editor of Police State America: U.S. Military "Civil Disturbance" Planning, distributed by AK Press. Read other articles by Tom, or visit Tom's website.

This article was posted on Saturday, May 10th, 2008 at 5:00am and is filed under Civil Liberties, Espionage/"Intelligence".

9 comments on this article so far ...

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  1. Lloyd Rowsey said on May 10th, 2008 at 5:50am #

    Most Excellent, Tom! I’m forwarding it to my friend, a librarian-assistant-professor in the California State University system, requesting that she forward it as appropriate. I hope you’ve forwarded it to national print magazines.

  2. Lloyd Rowsey said on May 10th, 2008 at 11:07am #

    And no mientes, Tomas. No post is good post at DV

  3. HR said on May 10th, 2008 at 1:26pm #

    I personally look forward to the day when those in “congress”, from either “party”, who voted for repressive legislation like the “patriot” act, realID, military commissions act, funding for wars, etc., are sitting in prison for the rest of their pathetic lives following conviction for treason. Apparently what I look forward to is not shared by many USans, who bleat contentedly as their freedom and privacy are stolen. After, “forget it and move on” has become the credo here following 30 years of failing to hold people accountable.

  4. Lloyd Rowsey said on May 10th, 2008 at 7:28pm #

    That is forward-looking, HR. You’re withholding your federal taxes, presumably.

  5. Tom Burghardt said on May 11th, 2008 at 1:27pm #

    Thanks for the comments and feedback… They’re appreciated. As far as forwarding my articles, DV and Global Research seem to be the only takers, as far as I can tell. Needless to say, there’s no accountability in Washington. From massive war crimes and the total destruction of Iraq, torture of prisoners and the destruction of civil liberties in the “homeland,” the only folks who are “accountable” for anything are, in the immortal words of the late Queen of Mean, Leona Helmsley, “the little people.”

  6. HR said on May 11th, 2008 at 1:41pm #

    Lloyd, I have heard the blathering babble about tax revolts all my life. I totally reject it, and have done so since my youth. To me, a tax revolt is the epitome of shooting oneself in the foot, not to mention being an ineffectual, ass-backward approach to change. I see it as a cover for implementation of a policy of doing away with public services that is promoted either by gullible dreamers, or by pseudoprogressives, whose real goal is to shrink government and do away with taxes, under the guise of being an antiwar effort (those who cry for “local control” are nothing but supporters of neofeudalism).

    Thoreau never impressed me, either. I suspect the story of his tax revolt was taught to us in the public elementary school curriculum solely for the purpose of ingraining in our little minds the notion of tax revolts as the way preferred by the rulers for commoners to express dissatisfaction, something much more to the liking of the wealthy power elite than us actually voting for our own candidates who would be more likely to enact policies that we commoners would support to begin with.

    I enjoy having the services that government provides me with just under half of the income taxes I pay to it. I like big government, too, really big, one which is big enough to provide badly needed services to itself, the people. I also am a strong supporter of a truly progressive income tax, for reimplementation of the tax brackets that existed before Reagan was ELECTED … and elected by working people.

    Let’s see now, just what would happen in the unlikely event of a real tax revolt. First, the IRS would come down on us, then the military, both only doing their jobs. Meanwhile, services to the needy would decline, or be stopped entirely, infrastructure maintenance would come to a nearly-complete halt. Small towns, dependent in large part on federal government grants for services like water and sewage treatment would suffer … as would large metropolitan areas. And, the wars, or whatever policy caused the revolt, would continue.

    Already I can hear hollering about just refusing to pay the 50-plus percent that goes to the war departments, and there are more than one of them here. Same result. Besides, once you’ve paid any taxes, how they’re spent is beyond your control. That’s left by the Constitution up to your ELECTED officials.

    For me the whole notion of tax revolts is a total exercise in futility. A total waste of time, time that could be better spent actually thinking for ourselves, and voting accordingly, with write-in candidates and numerous runoff elections, if need be. Instead, most of the half of us eligible who still vote will go to the polls and choose among identical corporate candidates, their “party” affiliation notwithstanding.

    Taking charge of this country by us commoners – for the first time, since “take BACK our country” is a sickeningly misleading phrase – doesn’t take an organized effort. No organization is required at all. People, on an individual basis, can mark their ballots, writing in the name if need be, for those they believe will truly represent their interests, whoever those people may be. It doesn’t matter if doing so results in the media, as well as those who benefit from the current system, dutifully branding the outcome a undemocratic, as chaos, or anarchy, or worse. It doesn’t matter if doing so spells doom for the money-dominated “party” organizations that have ruled this country from the beginning, for the benefit of the rich and powerful. What would matter is that the people would have spoken, would have, finally, taken a mighty step toward taking charge in a country that claims to have a government that is of, by, and for, THE PEOPLE.

  7. MRH said on May 11th, 2008 at 3:44pm #

    — HR said on May 11th, 2008 at 1:41 pm #
    “Lloyd, I have heard the blathering babble about tax revolts all my life. [….] Besides, once you’ve paid any taxes, how they’re spent is beyond your control. That’s left by the Constitution up to your ELECTED officials.”–

    HR, keep drinking the Kool-aid; whatever gets you thru the day. Taxes are spent by APPOINTED people; elected people are not involved in it at all. No one will send the goon squad or the IRS after a concerted, stalwart POPULATION that resists our government’s tyranny. People that think and act like you do make it easy, easy, easy for the government to abuse their power. A tax revolt is precisely that: a revolt. And it’s about time. You will also be VERY surprised to find out that many law enforcement and military personnel will support and agree with any kind of revolt against the tyranny this government has become. We don’t need “less” government; regulation is necessary. We need a government that answers to the people; radical surgery gets rid of cancer.

  8. HR said on May 11th, 2008 at 6:12pm #

    MRH, your APPOINTED, policy-level people are APPOINTED by ELECTED officials, and they carry out their wishes unless they are looking to get fired. In other words, they serve completely at the pleasure of ELECTED officials. I’ve heard the same blowhard talk that you have, from a few vets and cops, (and from a lot of other chronic whiners) particularly after they’ve had a few drinks, heard it all my life, but nothing ever comes of it. Deep down, below the bluster, they know damned good and well what a government response would be: just the same as it was when Washington put down the Whiskey Rebellion. And, they also know good and well that most cops and military members would do exactly as ordered by their political bosses, just as they did during the labor movement, just as they did during the Bonus Army invasion of Washington. After the government came down hard on a few example cases and publicized it, the “revolt” would collapse overnight.

    Tax revolts are nothing more than an unworkable, ass-backwards attempt to change the status quo. It’s a little like people reelecting a person to Congress after that person did nothing but sell them down the river for the previous two, or six, years, then whining about continuing to be sold out and proposing some nonsensical revolt as a response. You want change, then elect people who actually represent you. Correct the problem where it begins. The rest is just a reactionary pipe dream. While you’re at it, you might look into how government is organized … and actually functions on a day-to-day basis.

  9. evie said on May 12th, 2008 at 4:07pm #

    Even if new faces are elected every few years to represent the people, you will still be sold down the river until you outlaw that which makes selling out so easy and lucrative.

    It is possible to “revolt” quietly and for all intent and purpose – legally. Just become independent of government and have a good tax preparer/accountant.

    I may be one of the “little people” but I’m not stupid and can outwit the “ruling class” any day.