[Infowarrior] - FBI withdraws secret Internet Archive probe

[Richard Forno]

FBI withdraws secret Internet Archive probe
Abuse of power alleged
By Dan Goodin in San Francisco
Published Wednesday 7th May 2008 22:08 GMT
http://www.theregister.co.uk/2008/05/07/fbi_withdraws_secret_demand/

The FBI has withdrawn a secret order that used new anti-terrorism  
powers to demand information about a user of the Internet Archive  
without a court order after attorneys challenged it as an  
unconstitutional abuse of power.

The victory for the San Francisco-based digital library meant that its  
founder was able to speak publicly about the sweeping demand, known as  
an NSL or national security letter, for the first time on Wednesday.  
Up until now, the demand for personal information about an undisclosed  
Internet Archive patron was protected by a gag order that prevented  
all but a handful of people from knowing it even existed.

Since the 9/11 attacks, the use of NSLs has proved a popular tool for  
getting information in government investigations if it is deemed  
relevant to terrorism or espionage. More than 200,000 of them were  
issued between 2003 and 2006, and yet, because of the secrecy  
surrounding them, only three have been known to have been challenged  
in court. Remarkably, all three challenges have succeeded.

"The NSL basically allows the FBI to demand extremely sensitive  
personal information about innocent people without any prior court  
approval, often in total secrecy without any meaningful judicial  
review," Melissa Goodman, one of the attorneys representing the  
Internet Archive, said during a telephone conference with reporters.  
"It makes you wonder about the hundreds of thousands of other NSLs  
that have never been challenged and we know there are many."

The FBI withdrew the NSL after the American Civil Liberties Union and  
the Electronic Frontier Foundation, which represented the Internet  
Archive, filed a complaint (PDF) arguing that the Patriot Act statute  
that expanded the use of NSLs was unconstitutional.

Among other things, the lawsuit argued that the law was a violation of  
freedom-of-speech guarantees because it allowed the FBI to  
unilaterally gag NSL recipients with no prior court approval or  
judicial review afterwards. Rather than fight the case in court, the  
FBI agreed to withdraw the NSL and lift much of the gag order  
surrounding it.

Not an 'unqualified success'

Contrary to claims by Brewster Kahle, founder and chairman of the  
Internet Archive, that it was an "unqualified success" for all  
libraries seeking to protect their patrons from unwarranted government  
fishing expeditions, it was clear that the FBI was still managing to  
squelch considerable discussion about the case. Kahle and his lawyers  
repeatedly refused to say exactly what information the FBI sought and  
what, if any, was ultimately provided.

They refused to say, for example, whether they supplied the FBI with  
an email address the patron had used to register an Internet Archive  
account. They even declined to say what their reasons were for  
withholding such details.

"You're always in an extremely difficult place when the FBI is still  
gagging us, not pursuant to the NSL but because of the settlement  
agreement," Goodman said. "We have to be cautious in those situations  
and its always difficult. It's terribly frustrating to us."

They were also forbidden from saying who the patron was or what the  
person had done to attract the attention of investigators in the first  
place. Even though the NSL was served in November, it remains unknown  
if the patron has been notified that he or she is the target of the NSL.

Given the limits of the legal victory, it's interesting to learn that  
the FBI was likely limited in the information it could have gained,  
thanks to fairly sensible policies at the Internet Archive about the  
information it stores. The site doesn't collect IP addresses of its  
visitors and doesn't log what users do while browsing through its  
extensive catalog of music, videos and historical documents.

"As a library, we know that we've long protected patrons from  
government intrusions," Kahle (whose name rhymes with "pale") said.  
"Our document retention policies did exactly what we intended them to  
do."

Think about that, the next time you're surfing Google. ®