Legal Research

Internet Archive, which runs the Wayback Machine, has successfully challenged the FBI's demand that they turn over the name, address and e-mail records of one of their subscribers.  The Wayback Machine is an archive of 2 billion web pages that allows users to look at what ?used to be? on the web.  The FBI sought to obtain the subscriber?s records via a national security letter (NSL), which operates as a subpoena, but does not require judicial approval.  NSLs contain gag orders that prohibit recipients from revealing even the existence of the letter.  Use of NSLs has skyrocketed since 2001, and the FBI now issues more than 30,000 each year, up from the historical figure of 300 per year.  According to a report from the Justice Department?s inspector general in March, the bureau often uses the letters improperly and sometimes illegally.  Readers may remember the case of George Christian, a Connecticut librarian who received an NSL and a gag order after someone made a terrorist threat on a computer in a Connecticut library.  Christian challenged the gag order in court.  After the Christian case, the Patriot Act was amended to largely exempt libraries from national security letters.

A New York federal judge held that the original provision in the Patriot Act violated the First Amendment right of free speech.  The same New York judge struck down the successor version as well. The revised Act sought to avoid the constitutional difficulties of the original by requiring that the FBI certify in each case that disclosure might harm national security, criminal investigations, diplomacy or people?s safety.  In the Act as revised, judicial review was provided for, but under extremely deferential standards.  The New York judge held that not only the First Amendment but also the principle of separation of powers was violated by the revised Act.

In the Internet Archive case, the FBI agreed to settle and allow public discussion of the case.  An attorney for the Electronic Frontier Foundation, which helped represent the Internet Archive, speculates that the FBI did so out of a desire to avoid further negative precedent. 

Hat tip to Law.com.