The Internet Archive, with the help of the Electronic Frontier Foundation (EFF) is making public the second National Security Letter (NSL) issued to the Archive in our history (we received our first NSL in 2007 and successfully contested it with help from EFF and the ACLU). In response to our challenging this new NSL, the FBI has agreed to correct its standard NSL template and send clarifications about the law to potentially thousands of communications providers who have received NSLs in the last year and a half.
NSLs are a controversial tool that the FBI uses to demand specific types of private account information from service providers without a judge’s prior approval. NSLs also come with a gag order on the recipient. Their constitutionality is currently being litigated in courts.
The NSL we received includes incorrect and outdated information regarding the options available to a recipient of an NSL to challenge its gag.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? Thankfully, the FBI says that they will now be issuing corrections regarding the law. You can see their letter to us here.
Publishing this NSL is also important because only a few have ever been made public due to their across-the-board gag restriction, in spite of the fact that hundreds of thousands of NSLs have been issued since 2001.
Information regarding the individual targeted by this NSL and the issuing office is redacted in the version that we are releasing. We didn’t find any documents in our records responsive to the NSL, so nothing was turned over.
We are deeply appreciative for the assistance of EFF in this matter, enabling us to make public an example of a mostly obscured practice with very significant implications for individual privacy and civil liberties. See EFF’s press release as well their excellent collection of blog posts for more background and analysis.