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.
Full
report:
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