Watchdog slams 'bogus' Justice Dept. demand for news site's visitor logs
November 10, 2009
A Justice Department subpoena requesting all available information on all visitors to an independent news site is raising serious privacy concerns, and questions about how much information the US government is storing about its citizens' news reading habits.
Privacy watchdog Electronic Frontier Foundation has released an extensive report on a "bogus" attempt by a US attorney in Indiana to get Indymedia.us, an independent left-leaning news site, to hand over all the data it had about all the users who visited the site on a particular day.
Further adding to civil libertarians' and privacy watchdogs' concerns is the fact that the Justice Department ordered Indymedia to keep silent about the request.
"This overbroad demand for internet records not only violated federal privacy law but also violated [Indymedia's] First Amendment rights, by ordering [it] not to disclose the existence of the subpoena without a US attorney’s permission," the EFF's Kevin Bankston wrote.
And while Indymedia is an unabashedly left-wing news site, advocating causes such as gay rights and anti-globalization, some of the site's defenders in the wake of the subpoena controversy are right-wing pundits who are drawing a parallel between the Indymedia case and the war of words between the White House and Fox News.
Fox News host Glenn Beck sent out a Twitter message on Tuesday drawing attention to the Indymedia story. Though the Tweet was non-committal -- "Interesting times we live in. Can't wait to see what this story is about." -- it did raise the unusual prospect of a prominent right-wing commentator championing the rights of a left-wing news site.
"Beck claims to be a libertarian, so it’s no surprise that his hackles might be raised by this case," writes Robert Quigley at the Mediaite blog. "But more broadly, it’s understandable why this could alarm the right-wing media and its consumers. They already have a sense that the Obama administration is out for their heads (cf. the Fox News feud with the White House)."
Quigley argued that Indymedia's outspokenness, rather than its political leanings, could have made the news site a target. "You don’t have to be a ‘wingnut’ to be concerned about the government trying to ferret out the entire readership of a publication and then bar anyone from talking about it," he wrote.
According to the EFF, Indymedia received a request (PDF) in January for the IP addresses of everyone who visited the Indymedia site on June 25, 2008. But the request went further than simply asking for the computer addresses of visitors -- the subpoena ordered Indymedia to turn over all identifying information it may have about visitors, including their addresses, email addresses, bank account numbers and social security numbers.
However, as EFF points out, most Web sites don't collect that sort of data from typical visitors. And in the case of Indymedia, their records of visitors' IP addresses are stored only for a short time. So when Indymedia -- now represented by the EFF -- challenged the subpoena, it argued that the news site was unable to provide that sort of information to the federal government.
EFF reports that, when they challenged the subpoena, the Justice Department backed down, and responded with a one-sentence letter (PDF) that rescinded the subpoena. But at the same time, Justice Department officials threatened an Indymedia web administrator with charges of obstruction of justice if she revealed the subpoena's existence. Officials told the administrator, Kristina Clair of Philadelphia, that publicizing the request "may endanger someone's health" and would have a "human cost."
"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," EFF stated.
And, as a report at CBS News notes, the Justice Department may have violated its own rules about making requests from journalists. The guidelines state, among other things, that the US attorney general has to personally authorize a media subpoena.
There is some question as to whose responsibility it would have been to authorize the request. The subpoena was issued on January 30, 2009 -- 10 days after President Barack Obama was sworn in, but days before Holder was sworn in as attorney general. Thus it's not clear if Attorney General Eric Holder authorized the request, but several news blogs are now pointing the finger at the Obama administration.
In an article entitled "White House declared war on Indymedia?", Ed Morrissey writes: "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."
Complicating the matter is the fact that the Justice Department has released no information about what case or investigation the Indymedia request is connected to. Further complicating the case is the fact that Indymedia is a news aggregation site, with links to other news sites, so it's not clear what information the Justice Department could have gleaned from Indymedia's records that would have helped them in an investigation.
Indymedia is a left-leaning site that has championed anti-globalization causes for years. The EFF argues that the case raises serious concerns about the extent to which the US monitors citizens' news reading habits.
"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?" EFF asked. "How many of those subpoena recipients have been intimidated into silence by unconstitutional gag orders?"
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