Blown To Bits

The Internet Archive and the FBI

Friday, May 9th, 2008 by Harry Lewis

The Wayback Machine is a marvelous invention. Using the Internet Archive, a huge series of periodic snapshots of the Web, the Wayback Machine enables you with a single click and see what the web page you are now viewing looked like months or years ago. It’s fun. It’s useful. Even the FBI uses it.

For some reason the FBI got curious about someone else who was using the Internet Archive for something, and asked if it might please know what human being was associated with a particular “address.” Brewster Kahle, the father of the Internet Archive, protested, and the FBI withdrew its request.

It’s important to realize how much that brief account leaves out. The FBI did not go to court to get a search warrant issued. No conventional police work needed if national security is at stake. The FBI issued a “National Security Letter,” which it can do on its own. NSLs have the further interesting property that recipients cannot lawfully disclose having received them. Kind of like the double-secret-probation of Animal House memory. We know about Kahle’s only because he successfully argued that he was running a library, and when the PATRIOT Act was renewed, an exception for libraries was built in.

I’m delighted for Kahle, but somehow the whole sequence of events does not leave me feeling happy. The FBI issues 50,000 NSLs annually. We find out about very few so there are no statistics about who gets them and how many of them are requests for IP addresses of people using web sites. We don’t know what counts as a library; I’m glad the Internet Archive seems to, but only because the State of California classifies it as such.

“Orwellian” is one of those terms that have been cheapened by overuse. But it’s hard to think of a reason not to use it here. According to the Electronic Frontier Foundation’s coverage, these are the terms that were presented to Kahle: “The NSL included a gag order, prohibiting Kahle from discussing the letter and the legal issues it presented with the rest of the Archive’s Board of Directors or anyone else except his attorneys, who were also gagged. The gag also prevented the ACLU and EFF from discussing the NSL with members of Congress, even though an ACLU lawyer who represents the Archive recently testified at a congressional hearing about the FBI’s misuse of NSLs.”

He couldn’t talk even to his congressperson!

It’s a great victory, but it settles nothing, because the case never went to court. Nor has any other challenge to an NSL; in every one of the handful of cases in which an NSL was challenged, the FBI simply withdrew the NSL and the case evaporated.¬†

So the bottom line seems to be: 1984 is alive and well, as we report in Chapter 2 of Blown to Bits. There is no way to know how many ISPs, in situations as outrageous as Kahle’s but lacking the resources or the will to fight the FBI, simply comply with its demands and shut up. Whatever else the PATRIOT Act is, it’s a license for the FBI just to keep trying things, confident that it is almost certain to succeed even if it goes beyond the already vast powers Congress and the President have granted it.

One final, hopeful note. Where civil liberties are balanced against national security, significant numbers of people will usually go for the promise of security. But maybe people are getting fed up. Of the 77 comments on the Washington Post story linked to above, not a single one seems favorably disposed toward the FBI in this case. Of course, the FBI couldn’t really talk to the Post’s reporter ‚Ķ.

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