How the Feds Asked Me to Rat Out Commenters

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How the Feds Asked Me to Rat Out Commenters


On May 31, I blogged about the life sentence given to Ross Ulbricht, the creator of the “dark web” site Silk Road, by Judge Katherine Forrest. In the comments section, a half-dozen commenters unloaded on Forrest, suggesting that, among other things, she should burn in hell, “be taken out back and shot,” and, in a well-worn Internet homage to the Coen Brothers movie Fargo, be fed “feet first” into a woodchipper.

The comments betrayed a naive belief in an afterlife and karma, were grammatically and spelling-challenged, hyperbolic, and… completely within the realm of acceptable Internet discourse, especially for an unmoderated comments section. (Like other websites, Reason is not legally responsible for what goes on in our comments section; we read the comments sometimes but don’t actively curate them.)

But the U.S. attorney for U.S. District Court for the Southern District of New York thought differently and on June 2 issued a grand jury subpoena to Reason for all identifying information we had on the offending commenters—things such as IP addresses, names, emails, and other information. At first, the feds requested that we “voluntarily” refrain from disclosing the subpoena to anybody. Out of sense of fairness and principle, we notified the targeted commenters, who could have moved to quash the subpoena. Then came the gag order on June 4, barring us from talking about the whole business with anyone outside our organization besides our lawyers.

You can read a detailed account of how events, including the lifting of the gag order, played out here. As the legal blogger Ken White of Popehat has argued, the episode is plainly a huge abuse of power.

 

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DoJ's Gag Order On Reason Has Been Lifted — But The Real Story Is More Outrageous Than We Thought



So, the truth is out — and it's more outrageous than you thought, even more outrageous than it appears at first glance.

What, you might ask, could be more outrageous than the United States Department of Justice issuing a questionable subpoena targeting speech protected by the First Amendment, and then abusing the courts to prohibit journalists from writing about it?

The answer lies in the everyday arrogance of unchecked power.

The Subpoena and the Gag Order: Rote Over Substance

Throughout this story some people have suggested that there may be hidden facts, unknown complications, that justify the government's conduct. Now that Reason's journalists can speak, we can see that there's no there there.

First, the subpoena. Some have argued that the Department of Justice must have had information spurring them to use the grand jury to pierce the anonymity of people engaged in protected political speech. Not so. As Reason's report shows, Assistant U.S. Attorney Niketh Velamoor never articulated any specific basis to fear the bluster of these commenters — any more than he did when I spoke to him.

Saturday I interviewed Mike Alissi, publisher of Reason, who confirmed that Velamoor never suggested that he had any basis to view these as true threats. In fact, he seemed uninterested in the distinction between protected speech and true threats, and refused to narrow the subpoena to carve out the patently non-threatening "special place in hell" commenter. There is no secret ticking time bomb, no wizard with a woodchipper, no classified justification.

This was the Department of Justice targeting speech because it could.

Next, the gag order. Reason has published the gag order. As I suspected, the government relied on Title 18, United States Code, section 2705 to justify it. That statute lets a judge issue a gag order prohibiting disclosure of a subpoena if the government proves the following dangers:

 

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http://reason.com/blog/2015/06/19/government-stifles-speech



Reason's experience needs to be understood in a larger context. Especially since the 9/11 attacks, there has been a mounting conflict between the values of free speech and constitutional due process, with government making increasing demands–often under threat of punishment–for all sorts of information from innocent citizens. Coupled with the rise of a secretive and pervasive surveillance state, this tension means that Americans have no way of knowing just how unfree their speech really is.

While it is impossible to fully ascertain the frequency of information requests from local, state, and federal law enforcement, there is every reason to believe websites are subjected to thousands of demands each year. It is also not clear how other websites interpret the type of letter requesting "voluntary" confidentiality that Reason received. How often is that letter sent along with subpoenas? And how often does it achieve its intended effect of securing silence? In other words, does it have the same effect as a gag order?

In 2013, for instance, Mother Jones reported that Google, Facebook, Twitter, and Microsoft have between them received "tens of thousands of requests for user data from the US government annually," covering hundreds of thousands of accounts. Using corporate transparency reports, the magazine estimated that the companies complied with the demands between 72 percent and 89 percent of the time, and that it's impossible to know how many of those requests were filled without the affected users ever knowing their information had been targeted.

Also confusing the discussion about these orders is that different categories of cases have different rules and procedures, with some granting more power to targets than others. "Unlike grand jury subpoenas, subpoenas for commenter information in civil cases and in public criminal prosecutions are easier for websites to deflect. The information sought there may be truly tangential and the parties may be willing to negotiate," Sproul told Reason. "But, as in this case, when a grand jury subpoena targets specific information that it contends is necessary to an investigation and can demonstrate the link, any fight is going to be a seriously uphill battle."

Regardless of the legal details, the growing government demand for user data and our own experience with court-enforced silence on a self-evidently ridiculous investigation raise important questions about free speech and the abuse of power.