[Ppnews] Anatomy of a Bogus Subpoena: Indymedia Fights Back

[Political Prisoner News]

via Sis. Marpessa

<http://www.eff.org/deeplinks/2009/11/effs-secret-files-anatomy-bogus-subpoena>http://www.eff.org/deeplinks/2009/11/effs-secret-files-anatomy-bogus-subpoena


<http://www.eff.org/deeplinks/2009/11/effs-secret-files-anatomy-bogus-subpoena>From 
EFF's Secret Files: Anatomy of a Bogus Subpoena


Deeplink by <http://www.eff.org/about/staff/kevin-bankston>Kevin Bankston

Can the U.S. government secretly subpoena the IP 
address of every visitor to a political website? 
No, but that didn't stop it from trying.

In a 
<http://www.eff.org/wp/anatomy-bogus-subpoena-indymedia>report 
released today, EFF Senior Staff Attorney Kevin 
Bankston tells the story of a bogus federal 
<http://www.eff.org/files/subpoena.pdf>subpoena 
issued to independent news site 
<http://www.indymedia.us/>Indymedia.us, and how 
the site fought back with EFF’s help. Declan 
McCullagh at 
<http://www.cbsnews.com/blogs/2009/11/09/taking_liberties/entry5595506.shtml>CBSNews.com 
also has the story.

The report describes how, earlier this year, U.S. 
attorneys issued a federal grand jury subpoena to 
Indymedia.us administrator Kristina Clair 
demanding “all IP traffic to and from 
<http://www.indymedia.us/>www.indymedia.us" for a 
particular date, potentially identifying every 
person who visited any news story on the 
Indymedia site. As the report explains, this 
overbroad demand for internet records not only 
violated federal privacy law but also violated 
Clair’s First Amendment rights, by ordering her 
not to disclose the existence of the subpoena 
without a U.S. attorney’s permission.

Because Indymedia follows 
<http://www.eff.org/wp/osp>EFF’s Best Practices 
for Online Service Providers and does not keep 
historical IP logs, there was no information for 
Indymedia to hand over, and the government 
withdrew the subpoena. However, as the report 
describes, that wasn’t the end of the tale: Ms. 
Clair wanted EFF to be able to tell the story of 
the subpoena and shine a light on the 
government’s illegal demand, yet the subpoena 
ordered silence. Under pressure from EFF, the 
government admitted that the subpoena’s gag order 
had no legal basis, and ultimately chose not to 
go to court to try to force Ms. Clair’s silence 
despite earlier threats to do so.

This story is an an important example of how 
government abuses breed in secrecy, and an 
argument for Congress to step in and require 
meaningful reporting about how the government 
uses its surveillance authorities. How often does 
the government attempt such illegal fishing 
expeditions through internet data? How many 
online service providers have received similarly 
bogus demands, and handed over how much data, 
violating how many internet users’ privacy? How 
many of those subpoena recipients have been 
intimidated into silence by unconstitutional gag orders?

We don’t know. And until Congress exerts stronger 
oversight, we can’t know, except in those 
occasional instances where a brave online service 
provider steps up, pushes back, and tells the 
world. We encourage other online service 
providers to follow the example of Indymedia.us 
and Kristina Clair by standing up for their 
users' rights when the government secretly 
overreaches. If you're an ISP, a web host, an 
email provider, an app developer, a Web 2.0 
start-up or any other kind of online service 
provider and you receive a government demand for 
your users' data, please call a lawyer. If you don't have a lawyer, call EFF.

===========

From: CBS News

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 
<http://indymedia.us/>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 
<http://docs.indymedia.org/view/Global/PrinciplesOfUnity>principles 
of unity and 
<http://indymedia.us/en/static/mission.shtml>mission 
statement – work toward "promoting social and 
economic justice" and "social change.")

The 
<http://www.eff.org/files/subpoena.pdf>subpoena 
(PDF) from U.S. Attorney 
<http://www.justice.gov/usao/ins/usa.html>Tim 
Morrison in Indianapolis demanded "all IP traffic 
to and from 
<http://www.indymedia.us/>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.

"I didn't think anything we were doing was worthy 
of any (federal) attention," Clair said in a 
telephone interview with CBSNews.com on Monday. 
After talking to other Indymedia volunteers, 
Clair ended up calling the Electronic Frontier 
Foundation in San Francisco, which represented her at no cost.

Under long-standing 
<http://mccullagh.org/subpoena/doj.regulations.txt>Justice 
Department guidelines, subpoenas to members of 
the news media are supposed to receive special 
treatment. One portion of the guidelines, for 
instance, says that "no subpoena may be issued to 
any member of the news media" without "the 
express authorization of the attorney general" – 
that would be current attorney general 
<http://www.cbsnews.com/stories/2009/02/02/politics/main4770598.shtml>Eric 
Holder – and subpoenas should be "directed at 
material information regarding a limited subject matter."

Still unclear is what criminal investigation U.S. 
Attorney Morrison was pursuing. Last Friday, a 
spokeswoman initially promised a response, but 
Morrison sent e-mail on Monday evening saying: 
"We have no comment." The Justice Department in 
Washington, D.C. also declined to respond.

<http://www.eff.org/about/staff/>Kevin Bankston, 
a senior staff attorney at the San 
Francisco-based <http://www.eff.org/>Electronic 
Frontier Foundation, replied to the Justice 
Department on behalf of his client in a 
<http://www.eff.org/files/1st-letter-from-eff.pdf>February 
2009 letter (PDF) outlining what he described as 
a series of problems with the subpoena, including 
that it was not personally served, that a 
judge-issued court order would be required for 
the full logs, and that Indymedia did not store logs in the first place.

Morrison replied in a 
<http://www.eff.org/files/DOJ-letter.pdf>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."

<http://www.rcfp.org/bios/viewbio.php>Lucy 
Dalglish, the executive director of the 
<http://www.rcfp.org/>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."

Dalglish said that a subpoena being issued and 
withdrawn is not unprecedented. "I have seen any 
number of these things withdrawn when counsel for 
someone who is claiming a reporter's privilege 
says, 'Can you tell me the date you got approval 
from the attorney general's office'... I'm 
willing to chalk this up to bad lawyering on the 
part of the DOJ, or just not thinking."

Making this investigation more mysterious is that 
Indymedia.us is an aggregation site, meaning 
articles that appear on it were published 
somewhere else first, and there's no hint about 
what sparked the criminal probe. Clair, the 
system administrator, says that no IP (Internet 
Protocol) addresses are recorded for 
Indymedia.us, and non-IP address logs are kept 
for a few weeks and then discarded.

EFF's Bankston wrote a 
<http://www.eff.org/files/2nd-letter-from-eff.pdf>second 
letter to the government saying that, if it 
needed to muzzle Indymedia, it should apply for a 
gag order under the 
<http://www.law.cornell.edu/uscode/18/usc_sec_18_00002705----000-.html>section 
of federal law that clearly permits such an order 
to be issued. Bankston's plan: To challenge that 
law on First Amendment grounds.

But the Justice Department never replied. "This 
is the first time we've seen them try to get the 
IP address of everyone who visited a particular 
site," Bankston said. "That it was a news 
organization was an additional troubling fact 
that implicates First Amendment rights."

This is not, however, the first time that the 
Feds have focused on Indymedia -- a Web site 
whose authors sometimes blur the line between 
journalism, advocacy, and on-the-streets 
activism. In 2004, the Justice Department 
<http://www.nytimes.com/2004/08/30/politics/campaign/30delegates.html>sent 
a grand jury subpoena asking for information 
about who posted lists of Republican delegates 
while urging they be given an unwelcome reception 
at the party's convention in New York City that 
year. A Indymedia hosting service in Texas 
<http://news.cnet.com/8301-10784_3-5815946-7.html>once 
received a subpoena asking for server logs in 
relation to an investigation of an attempted murder in Italy.

Bankston has written a 
<http://www.eff.org/wp/anatomy-bogus-subpoena-indymedia>longer 
description of the exchange of letters with the 
Justice Department, which he hopes will raise 
awareness of how others should respond to similar 
legal demands for Web logs, customer records, and 
compulsory silence. "Our fear is that this kind 
of bogus gag order is much more common than one 
would hope, considering they're legally 
baseless," Bankston says. "We're telling this 
story in hopes that more providers will press 
back and go public when the government demands their silence."





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