Did the White House try to open up a two-front war on the media? Before the Obama administration launched an all-out battle with conservative-leaning Fox News Channel, the Department of Justice demanded the records of all visitor information of left-leaning Indymedia.us in an remarkable subpoena of a media outlet, for one specific day. No one can recall any precedent for such a wide-ranging probe into the records of a media website, but it may provide a challenge to a national-security law if the DoJ presses hard enough:
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.
Kristina Clair, a 34-year old Linux administrator living in Philadelphia who provides free server space for Indymedia.us, said she was shocked to receive the Justice Department’s subpoena. (The Independent Media Center is a left-of-center amalgamation of journalists and advocates that – according to their principles of unity and mission statement – work toward “promoting social and economic justice” and “social change.”)
The subpoena (PDF) from U.S. Attorney Tim Morrison in Indianapolis demanded “all IP traffic to and from www.indymedia.us” on June 25, 2008. It instructed Clair to “include IP addresses, times, and any other identifying information,” including e-mail addresses, physical addresses, registered accounts, and Indymedia readers’ Social Security Numbers, bank account numbers, credit card numbers, and so on.
Whoa. First, why would Indymedia have readers’ SSNs? I’m assuming that this was a “kitchen sink” kind of request. The rest of this seems pretty ominous, too. Why would the federal government need the banking records of everyone who ever visited their website? Why would they need the physical addresses of everyone who reads Indymedia?
CBS’ Declan McCullagh notes that this request had to have the personal approval of Attorney General Eric Holder, but that may or may not be true. DoJ guidelines require the AG to personally approve subpoenas on media outlets and reporters because of the sensitive nature of such demands. This subpoena got issued on January 23rd of this year, after the Obama administration took power, with Holder awaiting confirmation. Holder assumed office on February 3rd, which means that the acting AG may have had to sign off on the subpoena instead — or that Holder may have filled that role while filling the role pending confirmation.
At any rate, when the Electronic Frontier Foundation challenged the subpoena, the DoJ withdrew it immediately — but then issued a very strange warning about the subpoena itself:
Morrison replied in a one-sentence letter saying the subpoena had been withdrawn. Around the same time, according to the EFF, the group had a series of discussions with assistant U.S. attorneys in Morrison’s office who threatened Clair with possible prosecution for obstruction of justice if she disclosed the existence of the already-withdrawn subpoena — claiming it “may endanger someone’s health” and would have a “human cost.”
Lucy Dalglish, the executive director of the Reporters Committee for Freedom of The Press, said a gag order to a news organization wouldn’t stand up in court: “If you get a subpoena and you’re a journalist, they can’t gag you.”
Basically, that would be the “Shut up, he explained” strategy. While some national-security subpoenas may need some reasonable silence, asking for the banking records of all visitors to a media outlet website hardly qualifies for that purpose. And EFF knows how the DoJ should pursue that kind of subpoena, which is why they demanded that the DoJ pursue it under the specific act that would allow the DoJ to silence Indymedia. The DoJ backed down, not wanting to give EFF the opening they want to challenge the constitutionality of that law.
Why concern ourselves over the plight of Indymedia, a left-leaning outfit looking for “social change”? Obviously, we do the same kind of aggregation as Indymedia, which doesn’t offer much in the way of original content and reporting. We don’t collect physical addresses or banking information, but we would assume that any government willing in its third day in office to demand that kind of information and compliance from Indymedia would have no reluctance to demand something similar of Hot Air. Beyond self-interest, the First Amendment keeps government in check, and any attempt to limit its reach leaves the federal government with too much power over its citizens.