by Paul Alan Levy
There have been several stories recently covering the resolution of a lawsuit by Tom Rich, a formerly anonymous blogger, against the City of Jacksonville and a pair of prosecutors who went along with Robert Hinson, a rogue deputy sheriff, by using the criminal subpoena power to identify the blogger, who criticized a powerful local religious figure who ran Jacksonville’s First Baptist Church. The deputy turned the blogger’s name over to the church, which promptly expelled the blogger; meanwhile the deputy dropped his investigation. Regrettably, no attention has been paid to the spineless behavior of the ISP’s who went along with the criminal subpoenas without asking any questions or giving the blogger a chance to defend his anonymity.
Rich’s blog, FBC Jax Watchdog, criticized various financial and administrative decisions of the First Baptist leader, Reverend Mac Brunson. At the church’s behest, Hinson began an official investigation to discover why a member of the church was badmouthing the church leadership. He asked the local prosecutor’s office to issue criminal subpoenas, and it promptly issued such a subpoena, demanding that Google identify the operator of FBCJaxWatchdog.blogspot.com. Apparently without the slightest hesitation, Google produced information that led Hinson to Comcast, to which he obtained yet another subpoena for identifying information. Again without hesitating, Comcast gave Rich’s name. Hinson reported the name to the church, and dropped his investigation. The church elders called in Rich to explain why he had “sinned” by criticizing church leadership, then expelled him and his family from the congregation. The facts are summarized in the ruling that denied the prosecutors’ motion to dismiss, and in the motion for partial summary judgment whose filing immediately preceded the settlement.
Although neither Google nor Comcast generally opposes outright civil subpoenas to identify their users, both have a good history of insisting that the enforcement of such subpoenas be deferred until they have a chance to give notice to the customers, so that the customers will have a chance to defend their anonymity. This practice made their failure to defend their customer’s rights in this instance all the more surprising. I inquired of their legal departments why they acted as they did. I was disappointed to learn that neither company customarily asks any questions or gives any notice to customers when their receive subpoenas in connection with a criminal investigation. Instead, they verify only that the subpoena forms are properly filled out and are issued by courts of competent jurisdiction.
Comcast told me that it does not host user content, and when it gets subpoenas to identify its customers it has no way to check whether the speech that is that basis for the subpoena implies any form of criminality. Google has not yet given me any explanation for its posture; but I can see no reason why Google could not have looked at the FBCJaxWatchdog blog, recognized that this is simply criticism directed toward a powerful local religious institution, and asked for an explanation of what crime was being investigated.
This past weekend I attended Communications Law in the Digital Age 2010, where I spoke on a panel entitled "Reporters Privilege and Anonymous Speech." One of the issues with which we grappled was what lessons the press can learn from our successes defending anonymous speech online, and what lessons the defenders of anonymous speech can learn from the long line of authority on reporters' privilege to protect their sources.
The discussion reminded me that although the major ISP’s have generally behaved well when they receive civil subpoenas to identify their users, insisting that their users get notice and an opportunity to seek to quash, they lag far behind the mainstream media when it comes to criminal subpoenas. Newspapers and broadcasters have a forty-year history of fighting criminal investigators who issue subpoenas to identify their sources. Newspaper and television reporters regularly accept incarceration as the price that sometimes has to be paid for this principle. I can’t think of an ISP that has stood up to state power so strongly.
In least in some cases, that history has led media companies to resist criminal subpoenas to identify bloggers, although the media lawyers present evinced wide variation in the value that they placed on the content provided by users who comment on media web sites. All agreed that, at the very least, users should get notice so that they can move to quash on their own. And after the panel Barbara Wall, a vice-president of the Gannett media chain, discussed with me a number of cases around the country where Gannett has successfully resisted criminal subpoenas to identify the users of the web sites of some of their outlets around the country. Sometimes Gannett is able to talk prosecutors out of pursuing subpoenas, and sometimes it beats them in court. (It appears that Gannett was forced to "clarify its policies on anonymous speech" and remind its editorial staff not to release posters' names in response to an embarrassing incident involving one of its own papers.).
It can take gumption to resist these subpoenas, as I have learned when representing web hosts who refuse to provide identifying information to prosecutors who claimed a need to identify certain critics. Prosecutors typically refuse to describe the criminal charges that they are pursuing, while at the same time trying to make the ISP (and its lawyer) feel as if they are deliberately helping a criminal. And as Comcast reminded me, no ISP wants to be in the position of having helped a child trafficker or violent criminal escape detection and punishment by hiding the evidence or, even worse, assaulting a witness once they learn about the criminal investigation.
Subpoenas are often served with legends or cover letters that forbid disclosure, although federal prosecutors, at least, have been barred from routinely prohibiting disclosure. Some states have statutes that purport to forbid disclosure of subpoenas. Prosecutors will do their best to imply that resistance to the subpoena or notify the anonymous speaker so that he or she can file her own motion to quash could produce an obstruction of justice charge. And they will say, every other ISP gives us information when we ask for it – what makes you resist? So it does take backbone to stand up for bloggers’ right to speak anonymously.
When a state law or court-issued subpoena threatens criminal penalties for giving notice to the user so he or she can defend his own anonymity, I do not suggest that an ISP that is subject to process in that jurisdiction should violate the order or statute. But the ISP can, as we did in the Room Eight case, move to quash for the very reason that disclosure has been forbidden.
The better ISP’s fight back, at least when it appears that the matter under "investigation" is free speech and not true criminality, as the press have historically done in many cases. I regret to say that although I was able to make contact at Google on this issue, Google has yet to say whether it is ready to act differently with respect to prosecutorial subpoenas to identity its users. I can only hope that Google and its fellow ISP’s will begin to stand up for their users’ rights in the criminal as well as the civil discovery context.