Intellectual Property Law

Senators Question FBI About Unlawful Internet Archive Record Demand

By Marcia Hofmann

A bipartisan group of senators sent a letter (pdf) to FBI Director Robert S. Mueller III this week demanding answers about an illegitimate National Security Letter (NSL) served on the Internet Archive last fall. The Archive joined with EFF and the ACLU to fend off the NSL, which sought information about an Archive patron that the FBI had no authority to gather. After extensive negotiations, the FBI agreed last month to withdraw the letter and lift an accompanying gag order that had been imposed on the Archive, EFF, and ACLU.

The Electronic Communications Privacy Act (ECPA) allows the FBI to issue NSLs only to providers of an electronic communication service, which is "any service which provides to users thereof the ability to send or receive wire or electronic communications." However, the Archive was not acting in this role in connection with the information sought by the FBI. Furthermore, the Archive is a digital library protected from NSLs by a 2006 amendment to ECPA that limited the FBI's power to demand records from libraries.

Specifically, the senators want to know:

• Whether the FBI thinks the Internet Archive is a provider of an electronic communication service for purposes of the information sought through the NSL. If so, the senators want the FBI to explain why it believes the Archive is such a provider.
• Whether the FBI has issued any guidance to help agents figure out what constitutes a provider of an electronic communication service, and if so, what that guidance is. If there is no guidance, the senators want to know what the FBI thinks the scope of that term is.
• Whether the issuance of the NSL to the Internet Archive has been reported to the FBI General Counsel or Intelligence Oversight Board as a possible misuse of intelligence authority.

Ryan Singel of Wired News writes about the senators' letter and asks his own set of questions here. For more information about the Archive's battle against the FBI, take a look at EFF's Internet Archive v. Mukasey page.

Full post as published by Electronic Freedom Foundation - Deep Links on May 16, 2008 (boomark / email).