National Security Letter (NSL) Sent to Internet Archive From FBI Includes Error
Kudos and well done (as is regularly the case) to Brewster Kahle, the IA team, and the EFF.
From the Internet Archive:
The Internet Archive, with the help of the Electronic Frontier Foundation (EFF) is making public the second National Security Letter (NSL) issued to the Archive in our history (we received our first NSL in 2007 and successfully contested it with help from EFF and the ACLU). [Our emphasis] In response to our challenging this new NSL, the FBI has agreed to correct its standard NSL template and send clarifications about the law to potentially thousands of communications providers who have received NSLs in the last year and a half.
The NSL we received includes incorrect and outdated information regarding the options available to a recipient of an NSL to challenge its gag. Specifically, the NSL states that such a challenge can only be issued once a year. But in 2015, Congress did away with that annual limitation and made it easier to challenge gag orders. The FBI has confirmed that the error was part of a standard NSL template and other providers received NSLs with the same significant error. We don’t know how many, but it is possibly in the thousands (according to the FBI, they sent out around 13,000 NSLs last year). How many recipients might have delayed or even been deterred from issuing challenges due to this error? Thankfully, the FBI says that they will now be issuing corrections regarding the law. You can see their letter to us here.
“The free flow of information is at the heart of the Internet Archive’s work, but by using national security letters in conjunction with unconstitutional gag orders, the FBI is trying to keep us all in the dark,” said Brewster Kahle, founder and digital librarian of the Internet Archive. “Here, it’s even worse: that secrecy helped conceal that the FBI was giving all NSL recipients bad information about their rights. So we especially wanted to make this NSL public to give libraries and other institutions more information and help them protect their users from any improper FBI requests.”
The Archive received this NSL in August, more than a year after Congress changed the law to allow more gag order challenges. In its letter removing the gag order, the FBI acknowledged that it issued other NSLs that included the error, and stated that it will inform all recipients about the mistake. Given that the FBI has said that it issued about 13,000 NSLs last year, thousands of communications providers likely received the false information, and potentially delayed petitioning the court for the right to go public.
“The opaque NSL process—including the lack of oversight by a court—makes it very vulnerable to errors of law. Add to that the routine use of gags and enforced secrecy, and those errors become difficult to find and correct,” said EFF Staff Attorney Andrew Crocker. “We are grateful to the Internet Archive for standing up to the FBI and shining some light on this error. We hope that others who receive the correction will also step forward to have their gags lifted and shine more light on these unconstitutional data collection tools.”
Kahle told The Intercept that the incident should encourage others to challenge NSLs and gag orders in the interest of transparency.
“We would like to see more of these come to light so we understand more of the workings of the government,” he said. “All we get [now] is a tiny peek. We’re appreciative of at least having this much light on the process, but what we’d like to see is a lot more.”
About Gary Price
Gary Price (email@example.com) is a librarian, writer, consultant, and frequent conference speaker based in the Washington D.C. metro area. He earned his MLIS degree from Wayne State University in Detroit. Price has won several awards including the SLA Innovations in Technology Award and Alumnus of the Year from the Wayne St. University Library and Information Science Program. From 2006-2009 he was Director of Online Information Services at Ask.com.