National Security Letters

From time to time I have stated that it would be interesting to take some problem facing the information professions and have a group of faculty from various perspectives write position papers or reflections on how to deal with the issue. Well, here is an example of a problem, the continuing assault by the current presidential administration on free speech in the guise of national security. Given that we have faculty engaged in research about digital libraries, national security, archives and records management, ethics and public policy, e-government, and so forth, what an opportunity something like this presents. I am not arguing we should pursue such a project on this particular case, I just think it represents a relevant example.

Toni Carbo tipped me off about this particular story. It is a short news story, so it is here in full.

Libraries Win Second Round against National Security Letters, American Libraries, May 9, 2008, available http://www.ala.org/ala/alonline/currentnews/newsarchive/2008/may2008/kahlewinsnslbattle.cfm

“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,” Internet Archive founder and digital librarian Brewster Kahle stated May 7, two days after records were unsealed documenting his six-month legal battle to force the FBI to withdraw a National Security Letter because it sought details of several patrons’ archive use without a court order.

The disclosure about the existence of Internet Archive v. Mukasey came two days after the records were unsealed about Kahle’s federal complaint against the Justice Department. As legal counsel representing the digital library, the American Civil Liberties Union and the Electronic Frontier Foundation named themselves as co-plaintiffs because the gag order that has accompanied NSLs since the 2001 enactment of the Patriot Act also forbids legal counsel from speaking about any aspect of such a case.
The disclosed documents reveal that the FBI issued an NSL to the Internet Archive on November 19, 2007, seeking the patrons’ names and contact information and “all electronic mail header information (not to include message content and/or subject fields).” Kahle responded December 14, 2007, with a First Amendment challenge to the constitutionality of serving an NSL on a library. “The FBI cannot demand records from libraries [under the reauthorized Patriot Act], unless they are providers of wire or electronic communication services. The archive is not a provider,” EFF Senior Staff Attorney Kurt B. Opsahl wrote the agency three days later.

The complaint never became a full-fledged lawsuit because Opshal offered the FBI a deal: “If the government is willing to withdraw the NSL, including the nondisclosure order, the archive will voluntarily dismiss the lawsuit.” The FBI apparently agreed to negotiate, and reached a settlement agreement April 21 in which the NSL was withdrawn but the case itself remained under court seal until the Justice Department and the plaintiffs agreed on how relevant documents were to be redacted.

Thanking the plaintiffs for “their brave stand against this unconstitutional federal intrusion,” American Library Association President Loriene Roy said May 7, “While librarians fully support the efforts of law enforcement in legitimate investigations, those efforts must be balanced against the right to privacy.” Roy went on to call for the passage of the National Security Letters Reform Act of 2007 (H.R. 3189) “for meaningful Congressional oversight of these risky law enforcement tools.”

ACLU staff attorney Melissa Goodman noted, “It appears that every time a National Security Letter recipient has challenged an NSL in court and forced the government to justify it, the government has ultimately withdrawn its demand for records.” In response, John Miller of the FBI’s Office of Public Affairs said, “National Security Letters remain indispensable tools for national security investigations and permit the FBI to gather the basic building blocks for our counterterrorism and counterintelligence investigations.”

The Internet Archive is the third known instance of an NSL challenge, and became public two years after four Connecticut librarians successfully defended patron privacy from a similar NSL demand. The American Library Association as well as its Freedom to Read Foundation filed amicae briefs in an unrelated challenge by an Internet Service Provider to NSL gag provisions; Judge Victor Marrero of the U.S. District Court for the Southern District of New York overturned the entire NSL statute September 7, 2007, and the Justice Department is scheduled to offer oral arguments in June before the Second Circuit Appeals Court seeking to reverse Marrero’s ruling.