FBI withdraws national security letters subpoena, freeing target to talk

The FBI has withdrawn a special subpoena issued last year to a popular digital library known as the Internet Archive, which let agents analyze the nonprofit's records without a warrant.

The agency lifted a gag order on the organization last week as part of a settlement with watchdog groups that sued the government over its use of national security letters, the legal basis for which has prompted legislation and several hearings on Capitol Hill.

The NSL was served on the San Francisco-based organization in November, asking for personal information about one of the repository's users, including the individual's name, address and any pertinent electronic communication transactional records.

The archive's founder, Brewster Kahle, only turned over publicly available data and decided to fight the request with the help of the American Civil Liberties Union and the Electronic Frontier Foundation.

Congress passed a law in 2006 limiting the FBI's power to issue the information requests to U.S. libraries and this is the first known challenge to a security letter served on a library since the measure's passage.

Kahle's digital stacks are recognized by the state of California and the American Library Association. He said he "had to challenge something that was clearly wrong" but was barred from speaking about his battle until now.

Senate Judiciary Constitution Subcommittee Chairman Russell Feingold, D-Wis., and House Judiciary Constitution Subcommittee Chairman Jerrold Nadler, D-N.Y., have introduced bills imposing limits on when and how NSLs, and corresponding gag orders, can be used. Both have held hearings on the topic on the heels of a pair of reports from the Justice Department that highlighted numerous cases in which subpoenas have been improperly used.

Nadler said this lawsuit and others like it have made clear that "NSL authority has been used improperly and that some of its provisions are overbroad. ... Congress must bring clarity to the law to ensure that our law enforcement focuses its efforts on real threats and protects our fundamental freedoms."

Under the order, Kahle was banned from discussing the letter and the legal issues it presented with his board of directors or anyone else except his attorneys.

The attorneys were also prevented from discussing the case with lawmakers, even though an ACLU lawyer who represents the archive recently testified about the FBI's misuse of the letters.

The FBI's withdrawal is "a great victory for the archive and also the Constitution," ACLU attorney Melissa Goodman said, adding that each time a security letter has been disputed in court, government lawyers have ultimately abandoned their demands.

The big question, asked EFF attorney Marcia Hofmann, is "how many other improper NSLs have been issued by the FBI and never challenged?"

FBI Assistant Director John Miller said the information requested from the archive was "relevant to an ongoing, authorized national security investigation" and said the subpoenas are "indispensable tools" in antiterrorism probes.