FBI Withdraws Secret Internet Order after Lawsuit

While the eyes of the media were on the Obama-Clinton fight, the FBI caved in on a secret administrative demand when the Internet Archive, a digital library, filed suit against the order. The FBI wanted the name, address and online activity of a patron of the Internet Archive. It made its demand using a “National Security Letter,” which is not subject to judicial oversight and which cannot be disclosed publicly by the recipient. It is blatantly unconstitutional, and the FBI’s actions suggest it knows it.

According to the Washington Post, “NSLs are served on phone companies, Internet service providers and other electronic communications service providers, but because of the gag order provision, the public has little way to know about them. Their use soared after the September 2001 terrorist attacks, when Congress relaxed the standard for their issuance. FBI officials now issue about 50,000 such orders a year.” That’s a lot by any measure.

The Internet Archive challenged the validity of the NSL under a provision of the misnamed Patriot Act (as revised) that exempts libraries from this kind of demand. Moreover, the Internet Archive challenged the gag order part of the NSL as unconstitutional. The FBI agreed to drop the request, and the case was unsealed earlier this week.

On two other occasions, the FBI has withdrawn NSLs when challenged in court. Melissa Goodman, an ACLU staff attorney stated, “That calls into question how much the FBI needed the information in the first place, and finally, whether the FBI needs this kind of sweeping and unchecked surveillance power.”

Nevertheless, FBI Assistant Director John Miller said that the demand covered information “relevant to an ongoing, authorized national security investigation.” He added, NSLs “remain indispensable tools for national security investigations and permit the FBI to gather the basic building blocks for our counterterrorism and counterintelligence investigations.”

FBI would win a huge victory for itself if it could get a judge to support the NSL concept as it exists. The fact that it chooses not to do so suggests that FBI legal hotshots don’t think they could win. Staying in the grey area of doubt allows the FBI to gain compliance from those who lack the resources and courage of the Internet Archive and its lawyers. It is an approach unworthy of a free nation.

© Copyright 2008 by The Kensington Review, Jeff Myhre, PhD, Editor. No part of this publication may be reproduced without written consent. Produced using Fedora Linux.

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