Internet Archive, FBI Settle Lawsuit Challenging National Security Letter

Civil liberties groups and the founder of a San Francisco-based Internet library Wednesday announced the settlement of a lawsuit filed against the FBI over a secret order known as a national security letter.

Under the settlement, the FBI agreed to withdraw the letter served last year on the Internet Archive and to lift a gag order on the letter and on the lawsuit.

American Civil Liberties Union attorney Melissa Goodman said, "This is a great victory for the archive and also the Constitution."

Goodman said civil liberties groups believe a federal law authorizing the letters violates the First Amendment and the doctrine of separation of executive and judicial powers.

Under the U.S. PATRIOT Act of 2001, investigative agencies such as the FBI are entitled to issue letters seeking customer records from businesses and information about patrons' Internet use from libraries.

The FBI does not have prove to a court that it has a reason for suspicion of an individual, but must declare in the letter that the information is needed for counterterrorism or intelligence purposes.

Libraries and businesses receiving the letters are placed under a gag order and are not allowed to reveal them except to their lawyers.

The letter received by the Internet Archive in November sought information about a particular user of the archive. Archive founder Brewster Kahle said the organization gave the FBI some publicly available information but also filed a lawsuit challenging the letter.

Kahle said, "The goal was to help other recipients, other librarians to know you can push back on these letters. We hope the information will give people some idea about what's going on in some dark corner of this system we are all involved in."

The archive, established in 1996, maintains digital copies of historical versions of Web sites as well as digital copies of films and books in the public domain.

The lawsuit was filed in federal court in San Francisco in December by the archive, the ACLU and the Electronic Frontier Foundation and was assigned to U.S. District Judge Claudia Wilken in Oakland.

At the request of both sides, Wilken signed an order unsealing most of the contents of the letter and other documents in the case on May 2. Some items remain sealed, including the name of the person about whom information was sought.

John Miller, assistant director of the FBI's public affairs office, said, "The information requested in the national security letter was relevant to an ongoing, authorized national security investigation."

Miller 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."

Miller did not comment on details of the settlement except to say the lawsuit was "resolved through settlement" and that portions of the letter and other documents remain secret.

Lawyers from the ACLU and the Electronic Frontier Foundation said U.S. Justice Department reports show that nearly 200,000 national security letters were issued between 2003 and 2006.

The ACLU said that in two other challenges it has filed, judges found the gag orders unconstitutional and thus allowed disclosure of the lawsuits. In one of those cases, a trial judge also struck down the national security letter law itself and the government's appeal of that ruling will be argued before a federal appeals court in New York next month.

Marcia Hoffman, a lawyer with the San Francisco-based Electronic Frontier Foundation, said, "A miscarriage of justice was prevented here because the Archive decided to fight the unlawful demand for information and unconstitutional gag."

Hoffmann said, "The big question is, how many other improper national security letters have been issued by the FBI and never challenged?"