Last November the FBI used a top secret National Security Letter to demand user information from the Internet Archive, an online library. Internet Archive co-founder Brewster Kahle decided not to comply. Instead he sued and the FBI backed down. Kahle describes what it's like to challenge an NSL.
BOB GARFIELD: Last fall, an online library of webpages called the Internet Archive received a National Security Letter, or NSL, from the FBI. It's a secret demand for information, and when the government issues one the recipient can't talk about it, can't even acknowledge that it exists, except to his or her lawyer.
In this case, the FBI wanted the email address, contact information and usage information for an Internet Archive user. The Archive chose not to cooperate and instead was the third recipient of a National Security Letter to fight the government in court. And this week, the government settled.
By now, Internet Archive co-founder Brewster Kahle is well versed in all things NSL, but last November, when he first heard from his lawyers at the Electronic Frontier Foundation about the FBI's demand, he faced a serious decision. BREWSTER KAHLE: The Electronic Frontier Foundation – it's like an ACLU for the digital world – wasn't able to call us and tell us about it. They actually had to physically come over because as part of the gag order, the lawyers representing us couldn't use the telephone to discuss this.
So the EFF lawyers came over and talked to me about it, and it then put me under a gag order. I couldn't discuss it with the board, any of the other staff members. I couldn't even discuss the issue with my wife.
I had to make a decision of whether to give patron information over to the FBI or do what libraries do and protect their patrons and go against the United States government. BOB GARFIELD: It's hard to even fathom the frustration that you must have felt. But, unlike almost everybody else who has gotten such a letter, you did something about it. How did that play out? BREWSTER KAHLE: The Electronic Frontier Foundation, with the ACLU and the Internet Archive, decided to file suit to go and stop this demand and get some judicial review. If a judge had gone and said that they need certain information, then we would have tried to comply. But this has gone completely outside of the judicial system as it stood.
So we fought back against it, and not only did they decide then to withdraw their information request, they didn't want a judge to decide whether this whole law was constitutional. So they wanted to settle. The only way that we would be willing to settle is so that we could talk about this and remove the gag order. BOB GARFIELD: Now, previously, a recipient of a National Security Letter did litigate the matter and did win, and the court ruled that such letters are unconstitutional. But the government appealed that ruling, so the final result is pending.
In the meantime, what you've done is published what you call [LAUGHS] a cookbook for how to deal with an NSL, should you be unfortunate enough to receive one. BREWSTER KAHLE: The first step is to go to one of these pro bono firms, like EFF and ACLU, and you can file a lawsuit. It's legal, perfectly legal to push back on these, to get a court to go and say whether it's actually required. And if you go through that, in every circumstance they've been washed away.
So there's now a cookbook of the forms that they use and how you can go about pushing back on these – is now all up on public websites. BOB GARFIELD: When you spoke to the EFF about this and discussed your options, did you consider the idea of just going public and risking prosecution from the outset? BREWSTER KAHLE: No. The jail sentence is kind of onerous, but the wondrous thing is the EFF and the ACLU didn't blink. They said, of course, we're going to help you with this. Because imagine what the alternative would be. If I'm running a library, I can't even tell anybody about this. If I started incurring legal bills, I'd have to explain it to the board. There'd be no way to deal with getting this in front of a judge without incurring tens of thousands of dollars. BOB GARFIELD: And yet, when the Congress learned that the FBI has been issuing these letters indiscriminately, Congress didn't seem to get all that exercised about it. I mean, for example, this provision to date has not been repealed. Do you know of any attempts in Congress to deal with this particularly terrifying tool for a federal police agency? BREWSTER KAHLE: In 2006, they tried to make some exemptions for libraries, but then a library gets served with one of these things. It's still happening. And, unfortunately, because of the hyper-secrecy of this, there have been 200,000 of these requests over a course of four years. So 50,000 a year are being issued, and there are only three that have actually been challenged. BOB GARFIELD: The FBI apparently, when they issued the letter to you, did not regard the Internet Archive as a library, I guess. I mean, I don't know what they thought of your vast digital repository of – is it every page that has ever appeared [LAUGHS] on the Internet?
BREWSTER KAHLE: Yeah. BOB GARFIELD: But they weren't thinking of it as a library. So when they settled with you, was it because the scales had finally fallen from their eyes and they realized that they had overreached and abused the National Security Letter privilege or because they realized they'd been caught on a technicality – oh, I guess he's a library after all? BREWSTER KAHLE: We don't know. The speculation is that they just don't want these cases brought before a judge. And there are perfectly reasonable warrants and subpoena approaches for getting information that you need. These are just a shortcut that they use currently, and they're using it wildly. And that's the reason why we pushed back, so that people can start to see what it is that's going on out there.
BOB GARFIELD: All right, Brewster. Well, thank you very much. BREWSTER KAHLE: Thank you. Appreciate the time. BOB GARFIELD: Brewster Kahle is director and co-founder of the Internet Archive.