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.

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