Court Issues Search Warrant to Unmask Anonymous Poster

    by David Ardia
    January 9, 2008

    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.

    Tagged: anonymity cmlp LJWorld search warrant subpoena user comments

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