A bipartisan group of U.S. senators is asking FBI head Robert Mueller to explain why the feds sought records from the Internet Archive, a digital library, using a controversial administrative subpoena known as a National Security Letter, which is intended for a communications service providers.

The Internet Archive, a digital library of the web and media, beat the November 26 NSL with the help of attorneys at the Electronic Frontier Foundation and the American Civil Liberties Union. In April, the FBI agreed to withdraw the request for records on a Internet Archive user and lift the gag order that typically attaches to such requests.

The six senators sent Mueller a letter Thursday, asking him to explain what happened and to find out if the FBI reported the incident to an oversight board as a possible violation of federal law.

The Internet Archive's case is only the third known legal challenge to NSLs, despite the fact that the the FBI issues tens of thousands a year – more than 100,000 such letters were issued in 2004 and 2005 combined. But despite the lack of legal challenges from recipients at ISPs, telephone companies and credit bureaus, successive scathing reports from the Justice Department's Inspector General have found illegal letters and a willy-nilly culture within the bureau towards tracking their usage.

The tools are powerful because an FBI agent looking into a possible anti-terrorism case can essentially self-issue the NSL to a credit bureau, ISP or phone company with only the sign-off of the Special Agent in Charge of their office. Recipients may challenge the order in secret court proceedings, but are almost always barred for life from disclosing to anyone, including business partners and significant others, that they received such a letter.

Senator Russell Feingold (D-Wisconsin), the only senator to vote against the USA Patriot Act that eased the usage of NSLs, signed the Thursday letter (.pdf), along with senators John Sununu (R-New Hampshire), Richard Durbin (D-Illinois), Lisa Murkowski (R-Alaska), Ken Salazar (D-Colorado) and Chuck Hagel (R-Nebraska).

Specifically, they asked Mueller if the FBI actually believed that the Internet Archive was an communications service provider. If it were, FBI agents could get subscriber records using an NSL under the auspices of the Electronic Communications Protection Act. But if the Internet Archive is a library, that subpoena would be inapplicable and possibly illegal. That would mean that the NSL should be reported to the Intelligence Oversight Board as a possible violation of law.

The senators are asking Mueller if the Internet Archive subpoena actually was reported to the board.

That's a wise question to ask given that Justice Department Inspector General Glenn Fine has reported that the FBI has been negligent and tardy in reporting possible violations of federal NSL power.

It also makes sense in light of an odd case of a withdrawn NSL to a university that was later used by Mueller to argue for expanded court-free subpoena powers. The FBI only reported that overreaching subpoena for medical records at the end of 2007 as the Inspector General was sniffing around the case.

THREAT LEVEL has its own sets of questions:

First – In July 2007, FBI agents met with the Internet Archive's lawyers – the Electronic Frontier Foundation – to talk about getting information from the Archive. Some four months later, a seemingly totally deficient NSL was dropped on the Archive. It was signed not by the local Special Agent in Charge, but by Art Cummings, a top Justice Department counter-terrorism official.

Knowing that the Internet Archive is represented by lawyers who would jump at the chance to file a constitutional challenge to national security letters, wouldn't you think the FBI would take the four months between the initial meeting and the issuance of the letter to make sure the NSL complied with the law?

This seems especially odd given that in September 2007 – two months prior – the NSL statute had been ruled unconstitutional by a federal judge because of the gag order – a ruling that is currently under appeal by the feds.

Second, the NSL (.pdf) dropped on the Archive is now public, but curiously the boilerplate section of the letter that advises recipients on what kinds of things to search for and what counts as an electronic communication record is blacked out. The law isn't very clear on what that phrase means, but in other cases, is very specific about what is and is not covered under wiretapping rules. NSLs are not supposed to be used to get at the contents of a communication, though they can be used to get things like phone records.

Why does the FBI think that list of possible records should be secret? Does that list contain items that are actually content – for instance, URLs visited by a person?

Perhaps not surprisingly, the Center for Democracy and Technology called today for new legislation to regulate National Security Letters, saying the FBI is clearly incapable of policing itself.

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