GovernmentExecutive.com

The FBI has withdrawn a special subpoena issued last year to a popular digital library known as the Internet Archive, which let agents analyze the nonprofit's records without a warrant.

The agency lifted a gag order on the organization last week as part of a settlement with watchdog groups that sued the government over its use of national security letters, the legal basis for which has prompted legislation and several hearings on Capitol Hill.

The NSL was served on the San Francisco-based organization in November, asking for personal information about one of the repository's users, including the individual's name, address and any pertinent electronic communication transactional records.

The archive's founder, Brewster Kahle, only turned over publicly available data and decided to fight the request with the help of the American Civil Liberties Union and the Electronic Frontier Foundation.

Congress passed a law in 2006 limiting the FBI's power to issue the information requests to U.S. libraries and this is the first known challenge to a security letter served on a library since the measure's passage.

Kahle's digital stacks are recognized by the state of California and the American Library Association. He said he "had to challenge something that was clearly wrong" but was barred from speaking about his battle until now.

Senate Judiciary Constitution Subcommittee Chairman Russell Feingold, D-Wis., and House Judiciary Constitution Subcommittee Chairman Jerrold Nadler, D-N.Y., have introduced bills imposing limits on when and how NSLs, and corresponding gag orders, can be used. Both have held hearings on the topic on the heels of a pair of reports from the Justice Department that highlighted numerous cases in which subpoenas have been improperly used.

Nadler said this lawsuit and others like it have made clear that "NSL authority has been used improperly and that some of its provisions are overbroad. ... Congress must bring clarity to the law to ensure that our law enforcement focuses its efforts on real threats and protects our fundamental freedoms."

Under the order, Kahle was banned from discussing the letter and the legal issues it presented with his board of directors or anyone else except his attorneys.

The attorneys were also prevented from discussing the case with lawmakers, even though an ACLU lawyer who represents the archive recently testified about the FBI's misuse of the letters.

The FBI's withdrawal is "a great victory for the archive and also the Constitution," ACLU attorney Melissa Goodman said, adding that each time a security letter has been disputed in court, government lawyers have ultimately abandoned their demands.

The big question, asked EFF attorney Marcia Hofmann, is "how many other improper NSLs have been issued by the FBI and never challenged?"

FBI Assistant Director John Miller said the information requested from the archive was "relevant to an ongoing, authorized national security investigation" and said the subpoenas are "indispensable tools" in antiterrorism probes.

COMMENTS

• Skeeter, if you were a student of political science or history, you'd realize that your support of this regime more closely resembles that of a Whig or a Tory than the classic definition of a Republican. But then why pretend you're something you're not; just like you do acting like one of us. Look at the basic tenents of your party and compare them to what it's doing. Even Charlie Cook sees what a large percentage of the Party Pacaderm is looking around sheepishly. Tip off Posted May 20, 2008 4:31 PM
• the sole reason America is the land of the free is because we're the home of the brave.. Not the home of the stupids or fearful Dan ketter Posted May 14, 2008 11:52 AM
• "Congress must bring clarity to the law to ensure that our law enforcement focuses its efforts on real threats and protects our fundamental freedoms." Truer words have seldom been spoken. Now if we can just turn their attention to the PATRIOT Act and the FISA law… perhaps someday we’ll once more be able to call ourselves “America, land of the free”; the true reason for us being the “home of the brave.” Just reading this, those who can look just one more layer deep must be asking themselves “How many more fights against abuse are being gagged?” As for, "how many other improper NSLs have been issued by the FBI and never challenged?" I’m not sure I really would want to know. It just might scare me. Tip off Posted May 12, 2008 1:53 PM