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 a user who had posted comments on the paper's website, LJWorld.com. The warrant, which appears to violate the federal Privacy Protection Act, raises serious concerns about governmental overreaching and highlights the need for adequate procedural protections for anonymous online speech.
Based on the search warrant's description of the evidence to be searched, 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, the investigator gave the paper "the opportunity to call its attorney, who contacted the district attorney’s office and the court to
object to the search warrant. During that time period, the KU
investigator left the Journal-World offices without executing the
search warrant and did not return."
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 citizen media or professional 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 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, a2thek 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 CMLP's database entry: Kansas University v. Lawrence Journal-World.