FBI Backs Off From Secret Order for Data After Lawsuit

The FBI sent a "national security letter" to Brewster Kahle's Internet Archive, seeking the name, address and Web surfing data of a patron of the nonprofit. (By Ben Margot -- Associated Press)

Last fall, the FBI served the data demand on the archive's attorneys at EFF, a nonprofit in San Francisco. It directed the archive to turn over data, including length of service and all e-mail header information for a particular patron, as identified by an "address." Kahle's attorneys declined to say whether that referred to an e-mail address or an Internet protocol, or IP, address.

The archive, in keeping with longstanding traditions of libraries in the United States, seeks to guard patron privacy, Kahle said. It collects but does not verify the e-mail addresses of patrons wishing to sign up for archive library cards, use its message forums or post materials on the site. It does not keep or track IP addresses. Kahle said the archive has issued about 500,000 library cards.

According to a document filed in the case, the archive does keep records that may include the date a patron's account was opened, the screen names associated with the account, the unconfirmed e-mail addresses and messages of those who communicate with the archive via e-mail.

Because they initially were not allowed to discuss the NSL over the phone, Kahle and his attorneys had to drive to one another's offices whenever they wanted to talk about the case.

"Not being able to talk about it with our board, with my wife, made it very difficult," said Kahle, who is also on EFF's board. "I can imagine a hurried staffer sticking a gag into a hurried bill. But gags don't seem to be necessary, and now, what we've discovered in practice, gagging librarians is horrendous."

The Internet Archive voluntarily provided limited, publicly available information to the FBI, said EFF senior staff attorney Kurt Opsahl. He declined to elaborate.

Under a law enacted in 1986 and modified several times, national security letters may be issued to obtain "subscriber information," "toll billing records information" and e-mail transactional records, but not content. The Justice Department inspector general has documented cases in which providers have supplied more information than was requested, including content.

A bipartisan bill in the House would restore the requirement that NSLs could be used only to collect information that pertains to "a foreign or agent of a foreign power" and would limit the gag order to 30 days, unless a court authorized an extension.