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Internet Archive Wins NSL Challenge

Article excerpt

"I'm grateful that I am able now to talk about what happened to me, so that other libraries can learn how they can fight back from these over-reaching demands," Internet Archive founder and digital librarian Brewster Kahle stated May 7, two days after records were unsealed documenting his six-month legal battle to force the FBI to withdraw a National Security Letter because it sought details of several patrons' archive use without a court order.

The disclosure about the existence of Internet Archive v. Mukasey came two days after the records were unsealed about Kahle's federal complaint against the Justice Department. As legal counsel representing the digital library, the American Civil Liberties Union and the Electronic Frontier Foundation named themselves as co-plaintiffs because the gag order that has accompanied NSLs since the 2001 enactment of the Patriot Act also forbids legal counsel from speaking about any aspect of such a case.

The disclosed documents reveal that the FBI issued an NSL to the Internet Archive on November 19, 2007, seeking the patrons' names and contact information and "all electronic mail header information (not to include message content and/or subject fields)." Kahle responded December 14, 2007, with a First Amendment challenge to the constitutionality of serving an NSL on a library. "The FBI cannot demand records from libraries [under the reauthorized. Patriot Act], unless they are providers of wire or electronic communication services. The archive is not a provider," EFF Senior Staff Attorney Kurt B. Opsahl wrote the agency three days later.

The complaint never became a full-fledged lawsuit because Opshal offered the FBI a deal: "If the government is willing to withdraw the NSL, including the nondisclosure order, the archive will voluntarily dismiss the lawsuit. …