No Comment — November 12, 2009, 9:52 am

U.S. Attorney Sought Readership Information from Internet News Site

CBS News reports that on January 23—days after Barack Obama’s inauguration, but before his designated senior team had taken charge at the Justice Department—federal prosecutors in Indiana issued a subpoena to IndyMedia, a Philadelphia-based Internet news service.

In a case that raises questions about online journalism and privacy rights, the U.S. Department of Justice sent a formal request to an independent news site ordering it to provide details of all reader visits on a certain day.

The grand jury subpoena also required the Philadelphia-based Indymedia.us Web site “not to disclose the existence of this request” unless authorized by the Justice Department, a gag order that presents an unusual quandary for any news organization.

The subpoena demanded “all traffic to and from” the IndyMedia website on a specific date: June 25, 2008. Moreover, IndyMedia was threatened with obstruction of justice charges if it failed to comply promptly with the subpoena. IndyMedia responded by turning the matter over to attorneys from the Electronic Frontier Foundation, who acted on its behalf. They objected to the subpoena on a variety of technical grounds and also noted its probable illegality. EFF also noted that, acting consistently with EFF guidelines designed to thwart government snooping, IndyMedia did not keep the sorts of records the government was requesting. The U.S. attorney involved, Bush-era holdover Timothy Morrison, responded by withdrawing the subpoena.

What were the prosecutors looking for? That remains a mystery. Following the pattern established in earlier efforts to secure Internet data, they may have been looking for someone who read news at the site, posted a comment, or made a submission. The attempt to interfere with news collection efforts is more serious, but whenever law enforcement agencies ask about who is reading a publication, constitutional issues arise, and the very question is viewed as having a “chilling effect” on press freedom.

A number of rightwing web sites including Fox Nation and the Drudge Report, cited the CBS News piece in support of suggestions that “Attorney General Holder” and the “Obama White House” were going after the website. In fact, all of this transpired before the new administration had taken the reins at the Justice Department. But the question remains: on whose authority was the subpoena issued? The Justice Department has declined to comment.

Internal Justice Department rules, taking into account the strong public policy considerations supporting the free press (not to mention the First Amendment), impose a series of limitations on dealings with news media, including this:

no subpoena may be issued to any member of the news media…
without the express authorization of the Attorney General.

(28 C.F.R. § 50.10). At the time of the subpoena, a Bush holdover, Mark Filip, was serving as acting attorney general. Did Filip approve the subpoena?

For a number of reasons, it seems highly unlikely that he would have. First, the subpoena is extremely broad, and Justice Department guidelines require it to be narrowly tailored. Second, the Justice Department is required to attempt to collect the information from other sources rather than the media outlet. Third, the Justice Department is supposed to attempt to secure the information through cooperation rather than coercion. In this case, the prosecutors involved actually threatened IndyMedia with criminal charges in the event of non-compliance. Finally, it’s almost impossible to imagine that Judge Filip would have approved the gag requirement. It obviously constitutes prior restraint in violation of the First Amendment—the Justice Department is essentially telling a news organization that it may not report the news (in this case, that it had issued a sweeping subpoena). The law is well settled on that point: the Justice Department can’t do it.

My bet would be that the prosecutors acting to issue this subpoena broke the internal Justice Department rules by not getting the attorney general’s approval—just as they clearly broke the law in issuing a gag order to a news organization. This may explain why the U.S. attorney quietly withdrew the subpoena as soon as he faced opposition.

The question that remains is simple: what happens when Justice Department prosecutors break the law, abusing the prosecutorial powers of the United States in the process? In general, the Justice Department’s reaction is to sweep the whole affair under the carpet. There’s no evidence here that this case has been treated any differently. If prosecutors are able to intimidate and cajole the press in violation of Justice Department orders with impunity, that suggests that the attorney general doesn’t treat his own guidelines very seriously.

Share
Single Page

More from Scott Horton:

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

From the April 2015 issue

Company Men

Torture, treachery, and the CIA

Six Questions October 18, 2014, 8:00 pm

The APA Grapples with Its Torture Demons: Six Questions for Nathaniel Raymond

Nathaniel Raymond on CIA interrogation techniques.

Get access to 165 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

September 2015

Weed Whackers

= Subscribers only.
Sign in here.
Subscribe here.

Tremendous Machine

= Subscribers only.
Sign in here.
Subscribe here.

A Goose in a Dress

= Subscribers only.
Sign in here.
Subscribe here.

The Genealogy of Orals

= Subscribers only.
Sign in here.
Subscribe here.

view Table Content

FEATURED ON HARPERS.ORG

Article
Romancing Kano·

= Subscribers only.
Sign in here.
Subscribe here.

I recently spent a semester teaching writing at an elite liberal-arts college. At strategic points around the campus, in shades of yellow and green, banners displayed the following pair of texts. The first was attributed to the college’s founder, which dates it to the 1920s. The second was extracted from the latest version of the institution’s mission statement:

The paramount obligation of a college is to develop in its students the ability to think clearly and independently, and the ability to live confidently, courageously, and hopefully.

leadership
service
integrity
creativity

Let us take a moment to compare these texts. The first thing to observe about the older one is that it is a sentence. It expresses an idea by placing concepts in relation to one another within the kind of structure that we call a syntax. It is, moreover, highly wrought: a parallel structure underscored by repetition, five adverbs balanced two against three.

Article
The Prisoner of Sex·

= Subscribers only.
Sign in here.
Subscribe here.

“It is disappointing that parts of Purity read as though Franzen urgently wanted to telegraph a message to anyone who would defend his fiction from charges of chauvinism: ‘No, you’ve got me wrong. I really am sexist.’”
Illustration by Shonagh Rae
Article
Gangs of Karachi·

= Subscribers only.
Sign in here.
Subscribe here.

“In Karachi, sometimes only the thinnest of polite fictions separates the politicians from the men who kill and extort on their behalf.”
Photograph © Asim Rafiqui/NOOR Images
Article
Weed Whackers·

= Subscribers only.
Sign in here.
Subscribe here.

“Defining 'native' and 'invasive' in an ever-shifting natural world poses some problems. The camel, after all, is native to North America, though it went extinct here 8,000 years ago, while the sacrosanct redwood tree is invasive, having snuck in at some point in the past 65 million years.”
Photograph by Chad Ress
Article
The Neoliberal Arts·

= Subscribers only.
Sign in here.
Subscribe here.

“College is seldom about thinking or learning anymore. Everyone is running around trying to figure out what it is about. So far, they have come up with buzzwords, mainly those three.”
Artwork by Julie Cockburn

Percentage of Britons who cannot name the city that provides the setting for the musical Chicago:

65

An Australian entrepreneur was selling oysters raised in tanks laced with Viagra.

A naked man believed to be under the influence of LSD rammed his pickup truck into two police cars.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Subways Are for Sleeping

By

“Shelby is waiting for something. He himself does not know what it is. When it comes he will either go back into the world from which he came, or sink out of sight in the morass of alcoholism or despair that has engulfed other vagrants.”

Subscribe Today