A DECADE AGO, the FBI sent Brewster Kahle, founder of the Internet Archive, a now-infamous type of subpoena known as a National Security Letter, demanding the name, address and activity record of a registered Internet Archive user. The letter came with an everlasting gag order, barring Kahle from discussing the order with anyone but his attorney — not even his wife could know.
But Kahle did eventually talk about it, calling the order “horrendous,” after challenging its constitutionality in a joint legal effort with the Electronic Frontier Foundation and the American Civil Liberties Union. As a result of their fight, the FBI folded, rescinding the NSL and unsealing associated court records rather than risk a ruling that their surveillance orders were illegal. “This is an unqualified success that will help other recipients understand that you can push back on these,” Kahle told reporters once the gag order was lifted.
The bureau continued to issue tens of thousands of NSLs in subsequent years, but few recipients followed in Kahle’s footsteps. Those who did achieved limited but important transparency gains; as a result of one challenge, a California District Court ruled in 2013 that the everlasting gag orders accompanying NSLs are unconstitutional, and last year Congress passed a law forcing the FBI to commit to periodically reviewing such orders and rescinding them when a gag is no longer necessary to a case.
Now, Kahle and the archive are notching another victory, one that underlines the progress their original fight helped set in motion. The archive, a nonprofit online library, has disclosed that it received another NSL in August, its first since the one it received and fought in 2007. Once again it pushed back, but this time events unfolded differently: The archive was able to challenge the NSL and gag order directly in a letter to the FBI, rather than through a secretive lawsuit. In November, the bureau again backed down and, without a protracted battle, has now allowed the archive to publish the NSL in redacted form.…
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