Internet Archive Calls Out FBI For Using Outdated NSL Boilerplate; Scores Removal Of Gag Order

from the shame:-the-universal-motivator dept

One of the reforms included in the USA Freedom Act is the actual ability to challenge National Security Letter gag orders. Prior to the passage of this bill, recipients were limited to challenging gag orders once per year -- challenges that rarely succeeded. The process is no longer restricted to annual challenges, but many recipients won't be aware of this fact because the FBI hasn't been interested in telling them.

The Internet Archive -- with the assistance of the EFF -- has managed to lift a gag order on an NSL it received. This NSL [PDF], like the thousands of NSLs the FBI issues each year, came with outdated information regarding recipients' options for challenging gag orders.

The NSL we received includes incorrect and outdated information regarding the options available to a recipient of an NSL to challenge its gag.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?

Having been caught using outdated boilerplate, the FBI will now be sending out thousands of correction letters [PDF]. It's not as though the FBI wasn't aware of the changes in the laws governing NSLs. It likely found it more conducive to its secrecy aims to allow the old boilerplate to remain until recipients caught on.

Not only will the FBI be updating its NSL boilerplate, but it has apparently been shamed into transparency… at least in this particular case. The gag order on this NSL has been dropped and the Internet Archive is allowed to publish the redacted request.

The request asks for all personal information related to the targeted accounts from "inception to present." But there's another problem with the request which goes beyond outdated boilerplate. As the EFF's letter to the FBI [PDF] points out, the Internet Archive isn't the sort of entity the FBI can actually serve an NSL to.

18 U.S.C. 2709 is inapplicable to the Archive in this matter because the Archive is a library. Under 2709(g), the FBI cannot issue an NSL demanding records -- or imposing a nondisclosure requirement -- to libraries unless they are providers of wire or electronic communications services. The NSL does not specify which of the Archive's services it seeks records from and thus does not identify any context in which the Archive is a provider of a wire or electronic communication service.

The letter also points out that the FBI's gag order is unconstitutional prior restraint, something that runs contrary to the First Amendment. Of course, it's one thing for an NSL recipient to make this allegation. It's quite another to have it confirmed by a federal court. The EFF's constitutional challenge of NSL gag orders is currently awaiting review by the Ninth Circuit Court of Appeals. Whatever conclusion the court arrives at, there's little doubt that it will ultimately make its way to the US Supreme Court. Whether or not the Supreme Court decides to address it is likely still at least a year or two away.

But the voluntary lifting of a gag order by the FBI is a positive development -- one that suggests the more these orders are challenged, the more often the government will discover its demands for indefinite secrecy are rarely supported by the facts of the case.






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  • icon
    Seegras (profile), 5 Dec 2016 @ 12:31pm

    does not compute

    How come there even is something such as a "gag order"? I can only associate them with the DDR and Juntas and somesuch.

    How did the USA even get there, because the existence of a gag order seems to me the total, complete anathema of what the constitution says. It's clearly a violation of the first amendment, since the party served with it isn't the suspect, but at most a witness.

    reply to this | link to this | view in chronology ]

  • icon
    TheResidentSkeptic (profile), 5 Dec 2016 @ 1:12pm

    I'm more concerned

    ... that they are requesting information not from the source, but from a copy of the source of the information.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Dec 2016 @ 1:16pm

    Also interesting

    The blog post says this was the second NSL issued to them, and the one from 2007 was the first. Most companies are unwilling to be so specific, only saying that they received (for example) 0-99 NSLs in a specific year. Now we know that the Archive had 0 before 2007, exactly 1 in 2007, and 0 from 2008-2015.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 5 Dec 2016 @ 2:04pm

      Re: Also interesting

      Makes sense; they have very little private information. The only real information they have is for their account holders (like me) who submit curated material to the archive. For all other information, the FBI etc. can just run a search query on the site and get all the information they want.

      So yeah; an NSL to Archive.org is very worrisome in most situations, as it means they are investigating the background info of a person who intentionally submitted content to the site. Archive.org doesn't keep records of who queries information on their site, for the most part. They're a library and have special LoC exemptions.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 6 Dec 2016 @ 5:50am

        Re: Re: Also interesting

        Makes sense; they have very little private information.

        They could gather a lot of information on what people view. (When the PATRIOT act first passed, some librarians were very worried about this.) They say they don't keep these logs, but could an NSL force them to start?

        reply to this | link to this | view in chronology ]

    • icon
      R.H. (profile), 5 Dec 2016 @ 6:34pm

      Re: Also interesting

      The law only allows companies that have received NSL's to talk about them in those vague ways (and they had to fight for that much). Since the Internet Archive managed to get the gag order lifted, they are able to be more specific but, most companies who get these orders get enough of them that, even if they get a few lifted, they still have to refer to the rest by the same 1-100, 101-200, etc. rules as before.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Dec 2016 @ 2:10pm

    Why not?

    > It likely found it more conducive to its secrecy aims to allow the old boilerplate to remain until recipients caught on.

    Hey, as long as there's no punishment, then why not?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 5 Dec 2016 @ 2:26pm

    "How many recipients might have delayed or even been deterred from issuing challenges due to this error?"

    Who knows? TechDirt can help by running a banner for a few months stating, to the effect: "Receive an NSL letter? You can challenge it any time! Click Here!" Why not?

    reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 6 Dec 2016 @ 5:53am

    The pressing question is near the end of the article: why would law enforcement want anything with a library and what its users read?

    reply to this | link to this | view in chronology ]


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