The department demanded that indymedia.us provide the IP addresses of every reader that visited the site on June 25, 2008. The subpoena, submitted by U.S. Attorney Tim Morrison, did not disclose the subject of the investigation, but did include a gag order.
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
The site parlayed Mr. Morrison’s request with the help of the Electronic Frontier Foundation, a non-profit organization dedicated to defending “freedoms in the networked world.” Lawyers from the San Francisco-based organization took up indymedia’s cause in February. EFF attorney Kevin Bankston explains what happened next:
This overbroad demand for internet records not only violated federal privacy law but also violated [the site’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 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…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 [Indymedia]’s silence despite earlier threats to do so.
The actions of the Justice Department could trace straight to the top: Attorney General Eric Holder. Department policy regarding journalists states that “no subpoena may be issued to any member of the news media…without the express authorization of the Attorney General.”
The case is the latest in a series of incidents in which government actions that have raised debate about what constitutes journalism in the information age.
Last month, prosecutors in Chicago subpoenaed the notes of journalism students at Northwestern University, who had discovered evidence that raised questions about the innocence of a convicted murderer. The District Attorney‘s office justified the subpoena, saying that the students acted as private investigators, rather than journalists protected by the state’s media shield law.
The actions of federal and local prosecutors carry far reaching implications into how new media is treated in the legal system. The senate can provide some of these answers, as it considers a federal Media Shield Law which Congress passed last spring. The revised bill now extends “coverage to unpaid bloggers engaged in gathering and disseminating news information.” The bill came one step closer to becoming law after the White House voiced its–previously withheld–support last week.
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