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Silence Request Crosses Constitutional Bounds

An over-broad subpoena and a legally invalid gag order on an independent activist news site are pushing the bounds of First Amendment constitutional rights - and raising big questions about press freedom and personal privacy in the near-uncharted legal territory of new media.

An over-broad subpoena and a legally invalid gag order on an independent activist news site are pushing the bounds of First Amendment constitutional rights – and raising big questions about press freedom and personal privacy in the near-uncharted legal territory of new media.

The recently publicized Cynthia Wong, the Ron Plesser fellow at the Center for Democracy and Technology (CDT), said Friday in a phone interview that “the new media technology and the way that things can be tracked on the media” makes government more likely to “issue these types of over-broad demands for user information … the law enforcement authorities themselves weren’t following the procedures in this case.”

“A lot of the laws are very outdated,” Wong, who is also a staff attorney at CDT, went on to say, and “when they were written most of the communication was in paper.” They “need to be updated to reflect [the new] reality.”

The information request was issued on January 30, 2009, to Kristina Clair, a 34-year-old Linux administrator residing in Philadelphia who provides free server space for Indymedia, in the form of a grand jury subpoena from the Southern District of Indiana Federal Court. Because Indymedia does not keep records of its users’ IP addresses, with which information such as email addresses, physical addresses and Social Security numbers are available, Clair decided to fight for the right to discuss the subpoena, a restriction which EFF lawyers she contacted told her had no legal basis and was potentially unconstitutional.

The subpoena, according to a blow-by-blow recount of the legal battle on EFF’s web site, was obtained under the Stored Communications Act directly by prosecutors without any court oversight. The ease with which grand jury subpoenas are generally granted means that they can only be used to get basic subscriber information, and though the law does not require a grand jury subpoena to be kept secret, a request for silence is often made. In this case, however, the request was voiced as a demand – “you are not to disclose the existence of this request unless authorized by the Assistant US Attorney.”

The EFF succeeded in getting both the subpoena, which they termed as over-reaching, and the gag order, which they said trampled Clair’s First Amendment rights as a member of a news organization, dropped.

“There’s a pretty healthy body of First Amendment law that says prior restraints are presumably invalid,” said David Hudson, who is a First Amendment scholar at the First Amendment Center as well as a professor of First Amendment law at Vanderbilt Law School, in a phone interview. He said in this case the gag order could possibly be classified as a prior restraint, and that gag orders are “among the least tolerable infringements on First Amendment freedoms.”

Both demands on Clair were only dropped after a protracted back-and-forth between EFF and the assistant attorney’s office. Upon initial receipt of Clair’s request for assistance, the EFF, led by Kevin Bankston, a senior staff attorney, sent a letter on refusing to comply with the demands issued in the subpoena, highlighted the lack of legal basis for the gag order and spoke of their intent to publish and critique it despite the previously mentioned gag order. They also said the subpoena was not personally served, that a judge-issued court order would be required for details as extensive as the government was requesting and also pointed out that Indymedia did not store visitors’ IP addresses.

“This is the first time we’ve seen them try to get the IP address of everyone who visited a particular site,” Bankston told CBS News. “That it was a news organization was an additional troubling fact that implicates First Amendment rights.”

On February 24, after sending a second letter to the second attorney on the case, Steven DeBrota, the EFF received a voicemail from the Assistant US Attorney Dorris Pryor, admitting the initial demand for silence from Clair had no legal basis, but informing EFF that they would be seeking a legally sound gag order, which would soon be confirmed in a letter.

The following day, February 25, they received a letter – saying the subpoena had been withdrawn, along with what the EFF described as a “flurry” of voicemails stating a similar message. To clarify, the EFF called DeBrota, who said their “legal posture” was that Clair “can say what she wants,” but continued to insist that he felt that the disclosure of the subpoena “may endanger someone’s health,” and Clair should use “her conscience as a guide,” though he did not provide any further specifics on the risks of disclosure. DeBrota also refused to say definitively that Clair would face no legal consequences, mentioning the possibility that she could be affected if, for example, “her cousin is involved” in conduct being investigated.

“I didn’t think anything we were doing was worthy of any [federal] attention,” Clair said Monday. She ruminated further on the divide between the public and private sphere online. “In my mind, there is some degree to which all of this information is public, regardless of what information someone wants to be public … Privacy is really hard to think about and protect when non-privacy is so convenient. It’s important to me to help provide alternatives for people who want to use the Internet but are concerned about privacy.”

Lucy Dalglish, the executive director of the Reporters Committee for Freedom of The Press, said a gag order to a news organization was unlikely to hold in court: “If you get a subpoena and you’re a journalist, they can’t gag you. I have seen any number of these things [subpoenas] withdrawn when counsel for someone who is claiming a reporter’s privilege says, ‘Can you tell me the date you got approval from the attorney general’s office’ … I’m willing to chalk this up to bad lawyering on the part of the DOJ, or just not thinking.”

Additionally, a report by CBS drew on an anonymous source, saying that full procedure was not followed in submitting the subpoena. “A Justice Department official familiar with this subpoena just told me that the attorney general’s office never saw it and that it had not been submitted to the department’s headquarters in Washington, D.C. for review. If that’s correct, it suggests that US Attorney Tim Morrison and Assistant US Attorney Doris Pryor did not follow department regulations requiring the ‘express authorization of the attorney general’ for media subpoenas.”

This is not, however, the first time that Indymedia, which is an aggregator site and, therefore, publishes no original content, has come under federal query. In 2004, the Secret Service requested private records from NYC Indymedia’s Internet service provider, which the ISP refused to provide. Indymedia servers in London and Texas have come under similar requests.

IP addresses, which are left each time that a user visits a page, can be used to get information as wide-ranging as Social Security numbers, bank account numbers and credit card numbers, though it is possible to anonymize using tools such as Tor. Both Wong and Bankston, as well as the System Administrator’s Code of Ethics, say the best practice is that a web site administrator not retain information such as its visitors IP addresses, to keep to a minimum events such as the Indymedia case.

“Our fear is that this kind of bogus gag order is much more common than one would hope, considering they’re legally baseless,” Bankston said. “We’re telling this story in hopes that more providers will press back and go public when the government demands their silence.”

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