One of the issues we’ve been focusing on at the Citizen Media Law Project is whether traditional legal protections for journalists and journalism organizations are eroding as news organizations move online. A recent search warrant
seeking information about the
identity of a user of the Lawrence Journal-World’s website, LJWorld.com, raises serious concerns about governmental overreaching and highlights
the need for adequate legal protections for website user information.
Last month, an investigator at Kansas University delivered a search warrant to the Lawrence Journal-World,
a highly regarded newspaper in Lawrence, Kansas, demanding access to
their computer servers in order to get information about the identity of one of the site’s users. Based on the search warrant’s description of the evidence at issue, investigators were after the identity and contact information of a pseudonymous user named “a2thek,” who had commented on a December 8, 2007 article
about a Kansas University student who was found dead in a KU dorm room,
indicating that the death was heroin-related.
According to the Lawrence World-Journal,
which made the search warrant public on January 6, 2008, before the
investigator began his search he gave the paper an opportunity to call its attorney, who
contacted the district attorney’s office and the court to
object to the search. “During that time period, the KU
investigator left the Journal-World offices without executing the
search warrant and did not return,” the paper reported.
Although the investigator ultimately backed down, the fact that the
local district attorney’s office sought — and a Kansas state judge
issued — a warrant on a news organization is very troubling. If the
public believes that news organizations — whether they be professional media or citizen
media — are simply repositories of information
that law enforcement can tap at will, this will have a chilling effect
on speech, as people will be less likely to post information on these
sites. This risk didn’t go unnoticed at the Journal-World:
“What we see is that more and more frequently, law enforcement is
scrutinizing the postings on our Web site and is attempting to use what
we consider fishing expeditions to come after the identity of
individuals,” said Ralph Gage, director of Special Projects for The
World Company, which publishes the Journal-World. “We do feel an
obligation to the people who use that site to not be an automatic
conduit for law enforcement.”
Moreover, it’s likely that the search warrant violated the federal Privacy
Protection Act which, subject to certain exceptions, makes it “unlawful
for a government officer or employee, in connection with the
investigation or prosecution of a criminal offense, to search for or
seize documentary materials . . .
possessed by a person in connection with a purpose to disseminate to
the public a newspaper, book, broadcast, or other similar form of
public communication.” 42 U.S.C. § 2000aa(b).
Demonstrating some disdain for anonymous online speech, District Attorney Charles Branson told the Lawrence Journal-World that the Act doesn’t prohibit searches related to the identity of an online user:
“The best thing I can say about the Privacy Protection Act of 1980
is that it needs to be revised,” Branson said. “What it hasn’t been
able to do is keep up with the times. In 1980, they had no clue what a
blog is and how it would operate. They didn’t understand that people
would basically be able to spray paint on it like a graffiti wall and
move on.” Specifically, Branson said he did not believe an electronic file
containing information about the identify of an online poster could be
considered the “work product” of the newspaper.
While the Act does contain a separate section dealing with “work
product material,” which is entitled to even greater protection, the
law’s protections are not limited merely to work product. As the
language I’ve quoted above shows, the protection also extends to
“documentary materials . . . possessed by
a person in connection with a purpose to disseminate to the public.” I
couldn’t find any cases interpreting this language in the context of
anonymous user information, but the plain language of the statute would
seem to support the inclusion of this information under the Act. If you
know of a case addressing this question, please let me know by
commenting to this post.
It’s also obvious that investigators sought to avoid having to take the
proper — and legally permissible — route of issuing a subpoena for
the information. And why would they do that? Because a subpoena
implicates certain due process protections, especially the right to
reasonable notice and an opportunity to object. If the newspaper had
received a subpoena it or the user could have filed a motion to quash
on a variety of grounds, including a possible claim that providing the
information would violate the reporter’s privilege or the First
Amendment’s protection of anonymous speech. A search warrant, on the
other hand, gives law enforcement the right to collect the information
immediately and thus obviates these procedural protections.
As a side note, after the Journal-World made the search warrant public, the user posted a follow-up comment apologizing for providing inaccurate information in his earlier comment:
This infomation [sic] is not 100% correct and I
would like to take some time to apologize for any mis-information. The
guy that works with me I overheard in the bathrool [sic] making this
speculation of what actually happened so I dont [sic] know if it’s
actual fact or hearsay. I do once again dont [sic] want to draw any
lines or conclusions being I really dont know anything about all of it
and I think the guy at work was just an aquitance [sic] and went to
school with the guy and that’s what he heard. I guess when a autopsy is
performed that will get you the answers that your looking for. Sorry
for all the misleading info once again.
You can read more about the search warrant and track future developments by reviewing the Citizen Media Law Project’s legal threats database entry: Kansas University v. Lawrence Journal-World.
