Ed Brayton is a freelance writer and speaker. He is the co-founder and president of 
You've probably used the Internet Archive before. It's home to the Wayback Machine, an indispensable research tool for seeing what webpages looked like at specific times in the past, as well as many other great features (including a great archive of bootleg concerts). The FBI served a National Security Letter to them demanding that they turn over information on who accessed their site. With the help of the ACLU and the EFF, they fought that order and the FBI has now withdrawn its letter.
National Security Letters (NSLs) are typically used to compel libraries, internet service providers and telephone companies to turn over information on their customers without a court order or warrant. They are authorized under the Patriot Act, but the DOJ has admitted that the FBI has misused them in literally thousands of cases. The most serious problem with them is the lack of judicial oversight, which leads inevitably to abuse.
When a company receives an NSL, they are bound by law to turn over the information and they're also prohibited from speaking about the NSL to anyone. The Archive sued on that basis, arguing that this violated their first amendment rights. Rather than fight it out in court, the FBI decided to simply withdraw the request - while simultaneously claiming that the letter was legitimate and necessary.
The FBI defended its demand Wednesday on the Internet Archive in particular and the letters in general as important weapons to fight terrorism."The information requested in the national security letter was relevant to an ongoing, authorized national security investigation," Assistant FBI Director John Miller said in a statement. He said the NSLs "remain indispensable tools for national security investigations and permit the FBI to gather the basic building blocks for our counterterrorism and counterintelligence investigations."
Yes, that should set off your bullshit detectors. If they really believed that they had a case here, why wouldn't they go to court with it? Could it be that they really don't have probable cause to serve this warrant (which is essentially what it is) and they know that if they actually have to show cause before a judge, they're going to lose?
Indeed, as the ACLU notes on its blog, this is the third time they've challenged an NSL and every case resulted in the FBI simply withdrawing the letter. They ask the obvious question:
This begs the question: if the FBI is so willing to back down and withdraw their request at the first challenge, did they really need to issue an illegal gag in the first place? And what's wrong with going the normal law enforcement route and getting a warrant?
The answer is obvious: if they had to get a warrant they would have to show probable cause to a judge. And they don't have the evidence to do that.
Comments
No, it raises the question. Begging the question is a tautology, not an actual question.
But that's just pedantic.
On the real matter, it's galling that the FBi won't allow these cases to go to court. They're obviously sure that a ruling would stop these NSLs dead in their tracks.
Posted by: Jonathan | May 9, 2008 11:10 AM
Anybody remember "Writs of Assistance" from HS civics?
Law enforcement officers should not have the authority to approve their own warrants. We need to get judges back into the loop.
Posted by: Preston | May 9, 2008 11:35 AM
Ed, I thought there was a legal principle that still allowed cases like these to go to court? That is, entities cannot avoid a lawsuit by withdrawing their action? Wasn't this the case with the Dover trial? Even though the school board got unelected and the new one withdrew the stupidity, the case continued on these grounds?
Why doesn't this apply here?
Posted by: Braxton Thomason | May 9, 2008 11:41 AM
Braxton, that's a good question. What you refer to is known as the voluntary cessation doctrine. I can think of three possible answers, and perhaps Dan can jump in here and tell us which is correct.
1. The doctrine only applies to policies, not actions. It's possible that the doctrine only applies to policies passed by legislators and not to actions taken pursuant to their passage. For instance, I doubt that an appeal of an arrest would continue after charges were dropped.
2. The doctrine could apply in this circumstance but there was a settlement agreement to drop it.
3. The doctrine could apply in this circumstance but the judge decided to moot the case anyway (judges have a fair amount of discretion in such cases).
I'm leaning toward the first answer being the correct one, but I'm not certain of that.
Posted by: Ed Brayton | May 9, 2008 12:30 PM
The news report seems to say that the case was settled (number 2). Apparently, the settlement included removing the seal on the case (making it public, while blacking out identities) so we might be able to find out more.
Posted by: W. Kevin Vicklund | May 9, 2008 1:23 PM
The EFF has a page linking to many of the documents in the case, including the orders. Looks like a settlement was agreed upon.
Posted by: W. Kevin Vicklund | May 9, 2008 1:32 PM
Isn't there a law that law enforcement or federal government agencies can't be sued for doing their job (properly)? In this case, by withdrawing their letter, they don't let anyone see that they weren't doing their job properly.
Posted by: QrazyQat | May 9, 2008 1:43 PM
This could be the motto for entire Bush II administration.
Posted by: noncarborundum | May 9, 2008 2:35 PM
It always bugs me when I see "begging the question" being used inappropriately.
From this site we have the following information about "begging the question".
Tell all your friends.
Posted by: grasshopper | May 9, 2008 5:09 PM