Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
Declan McCullagh reports on a subpoena sent to the Independent Media Center (not to be confused with the Center for Independent Media, for whom I work) demanding the identities of everyone who visited their website on a given day.
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.
And then things get weird. The subpoena was withdrawn but the recipient was still threatened with punishment if they revealed that they had received one in the first place:
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.Kevin Bankston, a senior staff attorney at the San Francisco-based Electronic Frontier Foundation, replied to the Justice Department on behalf of his client in a 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Morrison replied in a one-sentence letter saying the subpoena had been withdrawn.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who threatened Clair with possible prosecution for obstruction of justice if she disclosed the existence of the already-withdrawn subpoena -- claiming it "may endanger someone's health" and would have a "human cost."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."
This is all quite bizarre and I think we are due an explanation. The original subpoena was dated at the very beginning of the Obama administration - Jan. 23, 2009. It may be that the Bush administration put this in motion and the Obama administration did away with it. But then why the intimidation about the existence of the warrant?
I'd like to see John Conyers, chair of the House Judiciary Committee, hold hearings on this and find out what happened here. Who authorized the subpoena in the first place? How was the decision made to withdraw it? Who decided they had the authority to order silence on the part of a news organization? There are lots of questions to be answered.
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Comments
For all of its bluster - it seems more and more evident that Obama's administration is no different from the previous. Perhaps the slogan "Hope" was short for "You better HOPE we're more ethical than them, but don't bet on it."
Posted by: Chris J. | November 11, 2009 9:44 AM
Why not require biometric identification to purchase a paper from a street-side news stand? Such a weird request.
Posted by: Abstruse | November 11, 2009 9:47 AM
Why does it feel like all our questions will be answered on the next episode of NUMB3RS?
Posted by: Abby Normal | November 11, 2009 10:03 AM
So apparently on June 25, 2008, indymedia.us had an article (or something) on their website which potentially attracted people whose identity was so important that the DOJ subpoenad the website's hosting company to help identify them.
And the identity of these people was so important that if the IMC even revealed that the DOJ wanted to know about it, human lives would be at risk?
Looking at the website for what stories were posted on June 25, 2008 doesn't give any obvious indication. Some random pro-socialism stuff, but it looked like it was about organizing petitions to get PSL on the ballots in some states.
Posted by: JohnV | November 11, 2009 10:15 AM
@Chris J.
The real problem is the corporate-run two-party system. Until we fix that, we'll have no real change!
Posted by: Abby Normal | November 11, 2009 10:24 AM
> demanding the identities of everyone who visited their website
Ho.. Ho ho... Hoooahhahhahhhahhhahha.
It's really sweet how many of the old spooks just don't understand how the 'net works.
http://en.wikipedia.org/wiki/On_the_Internet,_nobody_knows_you%27re_a_dog
Posted by: David Durant | November 11, 2009 10:27 AM
@Abby Normal
Please tell you've read today's XKCD :-D
Posted by: David Durant | November 11, 2009 10:31 AM
As Ed might say in a different context, I'll see your one supoena and raise you. I have to go now, Gordon Brown is reading over my shoulder.
Posted by: Matty | November 11, 2009 10:33 AM
Seven minutes from post to link, most impresive. +1 internets to David Durant.
Posted by: Abby Normal | November 11, 2009 11:43 AM
Independent Media Center vs. Center for Independent Media.
Judean People's Front vs. People's Front of Judeah.
Bloddy splitters!
Posted by: Pither | November 11, 2009 11:50 AM
Someone should be a smart ass and FOIA for it.
Posted by: History Punk | November 11, 2009 12:04 PM
I'm betting it will resemble "Lost," where the explanation makes even less sense than the mystery.
Posted by: Scott Hanley | November 11, 2009 12:12 PM
I think we're some way beyond expecting good intentions from the Obama Administration on anything lying on the liberty v alleged security axis. When it comes to pissing on the Constitution or the idea of Justice, Obama seems to have received a transplant of Bush's incontinent bladder.
I suspect the actual explanation if it ever comes out, will involve an incompetent apparatchik issuing an overly broad demand and then blustering to cover up his/her incompetence.
Posted by: Stagyar zil Doggo | November 11, 2009 1:29 PM
Looks to me like this was a investigation/fishing trip that originated under W that played out under Obama. It is entirely possible, knowing a bit about how bureaucracies work, that the needed approval from the AG may have been granted months, possibly years, ahead of the actual subpoena being issued. The subpoena being part of a larger investigation.
Once issued they met resistance and likely brought their consternation back to the office where someone tuned them into the idea that the new boss might not see the subpoena in the same favorable light. Morrison, or someone else in that office, then turned red and decided to avoid both personal and organizational embarrassment by dropping it and telling the IMC not to talk about it.
Seeing as that both 'It didn't happen' and 'skate fast over thin ice' are both reflexive bureaucratic tactics and Morrison is a 19 year veteran of the DoJ the two would seem to go together. But anyone who has marched the halls of such an organization long enough knows the KYA drill.
From DoJ website:
[quote]On April 28, 2008, Timothy M. Morrison was appointed as United States Attorney for the Southern District of Indiana by U.S. Attorney General Michael Mukasey. This followed Mr. Morrison's service as Acting United States Attorney beginning October 1, 2007, upon the resignation of United States Attorney Susan W. Brooks. Morrison has been with the Department of Justice for more than 19 years and has served as First Assistant United States Attorney in the Southern District of Indiana for most of that time. On two previous occasions, he served as interim U.S. Attorney, once in October, 1993 and for twenty months from February, 2000 to October, 2001.[/quote]
Posted by: Art | November 11, 2009 3:28 PM
Memo to self: Use an anonymiser next time I browse non-Party Approved websites.
Posted by: Snoof | November 11, 2009 6:16 PM
Wow - a subpoena with a gag! I wonder if it is legitimate. Judges can't simply sign subpoenas for just anything - there needs to be a reason based on existing law. Well, I guess that was the case until Dubbyah introduced despotic laws which allow the issue of frivolous subpoenas under the guise of national security. I certainly don't envy anyone issued with an unlawful subpoena - it's really not easy to challenge the legitimacy of a subpoena since you always risk the 'poena' (punishment) part of the 'sub poena' (under threat of punishment).
Posted by: MadScientist | November 11, 2009 8:49 PM
Here's something you might not have appreciated -- President Obama doesn't personally make all of the decisions in the Executive Branch. Most decisions are made at lower levels with minimal senior review and aren't questioned until and unless someone makes a stink about it. It is inconceivable that a newly appointed, senior official of the new administration gave this any consideration within a few days after the Inauguration.
Posted by: ruidh | November 11, 2009 10:06 PM
Funny thing... nearly all the Obama Administration policies I object the most to - defending the state secrets 'privilege', failing to prosecute torture, things like this - all originate in the Justice Department.
Makes me think someone in the DOJ must have the dirt on Obama or something. If so, they're more than usually competent - no one in the modern Republican party could possibly have the dirt on any Dem without using it immediately.
Posted by: Mithrandir | November 12, 2009 3:33 AM
@ruidh: Well put. I agree that many people have interesting expectations of others (especially of people in government). One I used to hear very frequently is "if the law was unconstitutional, why didn't the Supreme Court reject it?" I have to explain how the adversarial system works and how someone actually has to file documents challenging the law in question and that the Supreme Court doesn't act on its own and review all laws passed. In part I think it's because school kids are told that determining the constitutionality of a law is one job of the Supreme Court (but kids are never told a thing about the actual processes). It can be quite dangerous because, for example, Joe Average assumes that all laws must be constitutional or they would not pass in the first instance.
Posted by: MadScientist | November 12, 2009 5:34 AM
i totally agree with snoof
Posted by: debt relief | November 12, 2009 11:05 AM
ruidh@17:
Right. Its clearly upto the affected parties to make a stink about it by availing of their constitutional due process rights. Except, those rights now exist only so long as the Govt. doesn't flash its National Security trump, thanks to Bush, Obama, and a plethora of compliant Judges.
While its unlikely that Obama was personally involved in this particular instance of idiotic excess, he's certainly played his part in ensuring that low level apparatchiks retain the unquestionable* authority to indulge in such wankery.
*Oversight by superior doesn't count.
In Capitalist America, Law Violates YOU!
Posted by: Stagyar zil Doggo | November 12, 2009 4:03 PM
I dunno, maybe he was working for a Nigerian prince? Or the Spanish Lottery.
Posted by: Ian | November 12, 2009 4:21 PM