The New York Times
July 15, 2008
At the Uneasy Intersection of Bloggers and the Law
By JONATHAN D. GLATER
There is no better way to get a blogger talking than by telling him what he cannot publish — although you might forgive a government prosecutor for thinking otherwise.
A grand jury subpoena sent by prosecutors in the Bronx earlier this year sought information to help identify people blogging anonymously on a Web site about New York politics called Room 8.
The subpoena carried a warning in capital letters that disclosing its very existence “could impede the investigation being conducted and thereby interfere with law enforcement” — implying that if the bloggers blabbed, they could be prosecuted.
“We were totally perplexed,” said Ben Smith, who co-founded Room 8 with Gur Tsabar. (The site calls itself an “imaginary neighbor” to the press room — Room 9 — in City Hall in New York.) The two promptly began looking for a lawyer. “We knew enough to be scared.”
This, of course, is a blogger’s nightmare: enforced silence and the prospect of jail time. The district attorney eventually withdrew the subpoena and lifted the gag requirement after the bloggers threatened to sue. But the fact that the tactic was used at all raised alarm bells for some free speech advocates.
The demand for secrecy raised the unnerving prospect that prosecutors could quietly investigate anyone who posts comments online, while the person making those comments is unaware of and unable to respond to the risk. The tactic also robs bloggers of one of their most powerful weapons: the chance to spread the word and turn the legal attack into an online cause célèbre.
Lawsuits over information posted online are usually civil, not criminal — that is, they are filed by private citizens or companies trying to keep something off the Web. Courts have developed ways to evaluate the claims, often using tests to balance the First Amendment’s protections of speech against the harm caused by whatever someone wrote or said.
Using such an analysis earlier this year, a federal judge in San Francisco reversed an order disabling a Web site that allowed the anonymous posting of documents, after he weighed concerns about the order’s effect on free speech.
In that case, efforts to block access to the Web site, called Wikileaks, ended up attracting far more attention to the documents posted there.
But there are fewer precedents explaining how courts should evaluate criminal subpoenas, according to legal experts. Perhaps that is because prosecutors are more cautious about the risk of violating the First Amendment and so issue fewer criminal subpoenas, or because the subpoenas themselves carry language prohibiting disclosure of their terms.
“In the criminal context it’s trickier because it’s the government asking for stuff, and I think it’s going to be harder to fashion a rule, especially when the government is not exactly willing to part with the reasons” for requesting the information in the first place, said Jonathan Zittrain, a law professor at Harvard.
Without knowing the motives of prosecutors, he continued, judges may be hard-pressed to balance their needs against the importance of free speech.
Bloggers concerned about possible litigation may want to check the privacy policies of their Internet service providers, to see whether they include a pledge to notify any customer whose site is the subject of a subpoena, Mr. Zittrain said.
Armed with that knowledge, a blogger could fight the subpoena in court. Software also exists that is intended to make it difficult to identify those who want to be anonymous online.
Some of the people blogging on the Room 8 site are named, but many choose to be anonymous. Mr. Smith said he called the assistant district attorney in the Bronx who had issued the subpoena to try to find out more about why prosecutors wanted the Internet Protocol, or I.P. address, of the person who blogged under the name Republican Dissident. But the prosecutors would not share any information, he said.
An I.P. address, together with the date and time of an online comment, can help identify the computer used to make that comment.
Mr. Smith said he was not opposed to helping prosecutors in all cases. “Was somebody found face-down on their keyboard and the I.P. address was going to help identify the killer?” he said. “We’re not free speech absolutists here.”
Steven R. Reed, a spokesman for the Bronx district attorney, Robert T. Johnson, said on Monday that the office had no comment on any investigation related to the subpoenas sent to Room 8. Mr. Reed, however, said it was not uncommon for subpoenas to include nondisclosure language in order to protect an investigation.
In this case, he said, “The district attorney was not aware that a subpoena was sent nor was he aware of the content of the comments, until after the subpoena was sent. The district attorney reviewed the matter, determined that a subpoena was not necessary at this time, and directed that it be withdrawn.”
Because of that withdrawal, Mr. Smith and his lawyers could share court filings in the case and talk about it openly.
In addition to Republican Dissident, prosecutors wanted to identify several other people who chose to post comments anonymously. Some of the comments cited news reports about investigations to support their criticism of Republican officials.
The prospect of helping to unmask some of the commenters on the site made Mr. Smith and Mr. Tsabar nervous.
“If our anonymous bloggers were to learn that we’d been handing out their identities to politicians whom they’ve been criticizing, I think they’d be much less likely to write on the site,” Mr. Smith said.
Mr. Smith and Mr. Tsabar found lawyers willing to represent them free at Public Citizen Litigation Group, a public interest law firm that has been active in other cases involving free speech online.
Pro bono representation was important, Mr. Smith said, because Room 8 does not generate much advertising revenue. Both founders have day jobs unrelated to the site, Mr. Smith as senior political writer at Politico, the online news site devoted to politics, and Mr. Tsabar as vice president at Ketchum, a large public relations firm.
Paul Alan Levy, a lawyer at Public Citizen Litigation Group in Washington who has played a role in many free speech cases involving technology, filed a motion to quash the subpoena and argued that the proceedings should not be secret. Filings in the case are on Public Citizen’s Web site.
“They refused to go anyplace and tell me, what are they investigating, why is this speech relevant,” Mr. Levy said. Prosecutors also opposed posting a note on the blog announcing the subpoena, though they eventually permitted Room 8 to try to send an e-mail message in May to Republican Dissident about it. No one answered, but by then, Republican Dissident had already deleted all of his or her posts from the Room 8 site.
“Generally, people post anonymously sometimes for a good reason, sometimes it’s for a bad reason,” Mr. Levy said.
“We argue for a balancing test,” he continued. “Let the discovery be had when there’s a good reason for it.”