The Reyes affidavit all but eliminates the traditional distinction in classified leak investigations between sources, who are bound by a non-disclosure agreement, and reporters, who are protected by the First Amendment as long as they do not commit a crime. (There is no allegation that Mr. Rosen bribed, threatened or coerced anyone to gain the disclosure of restricted information.)

Mark Mazzetti, who covers national security for the New York Times — one of several leading investigative reporters I reached out to today — says he is experiencing a greater reluctance on the part of sources to talk to him.

"There's no question that this has a chilling effect," Mazzetti said. "People who have talked in the past are less willing to talk now. Everyone is worried about communication and how to communicate, and [asking if there] is there any method of communication that is not being monitored. It's got people on both sides — the reporter and source side — pretty concerned."

As of this date, no responsive memorandum has been filed. LRCiv 7.2(i) provides in part “if the opposing party does not serve and file the required answering memorandum, ...such noncompliance may be deemed a consent to the denial or granting of the motion and the Court may dispose of the motion summarily.” Pursuant to this rule, the Court deems Plaintiff's failure to serve and file the required answering memorandum a consent to the granting of Defendant-Movant's Motion to Quash the Subpoena to Wild West Domains Seeking Identity Information.

Our client is requesting all Internet Protocol addresses (including the date and time of that access in Universal Coordinated Time) that accessed the blogs located at dietrolldie.com and fightcopyrighttrolls.com between January 1, 2011 through the present. Please provide this information in an Excel spreadsheet.

Due to the emergency nature of the requested information, it is imperative that your organization responds to the subpoena immediately. The requested information is perishable and vital to the claims asserted in a complaint alleging widespread and systematic defamation.

The imposition of data preservation requirements on a journalist who is not a party to the litigation raises questions apart from the merits of the order. Journalists need to be able to discard data when they no longer have any of their own use for it.  Yes, “the public has a claim to every man’s evidence,” but don’t members of the public who are not involved in litigation have the right to discard information despite the fact that it might turn out to be useful evidence for somebody else’s case?  Does the public have a claim to heroic efforts on every man’s part?  Shouldn’t there be higher standards for subpoenas demanding intrusive searches for discarded data in the hands of third parties?

The problem is compounded when it is a journalist that has been subpoenaed.  To what extent does society have any entitlement to make journalists in particular take heroic measures, such as searching the nooks and crannies of their computer equipment for fragments of discarded data?  The judge was sensitive to the fact that our client here is a journalist, telling Escape Media that he was not prepared to allow it to make any general search of Digital Music News’ computers.  But an issue that we may have to pursue on appeal is whether a journalist should ever have to undertake such drastic preservation efforts in aid of a lawsuit in which he is not involved, particularly given the relative unlikelihood that fragments of identifying data remain on his computers somewhere.

Indeed, the problem is broader than just journalists.  Companies often keep log files with respect to server visits (and hosted comments), but there is little business justification for keeping those logs forever; so generally speaking they are discarded after a period of time (EFF's best practices recommendations are worth a look in this regard).  Does the mere act of discarding log files set a company up for the possibility of a demand for forensic examination of the underlying servers, in the hope that some fragment of the data might be recovered?  In this regard, the trial court's order has chilling implications for other California companies, even beyond the issue of journalists. 

Issues of how to preserve the data remain to be decided.  This is not like just leaving one of your file cabinets untouched for a period of time; it is not even as easy as making sure you don't delete any of your email.  Preserving the web site while creating a copy of the underlying servers is a complicated process, requiring the services of a forensic specialist, and the cost could be substantial.  The estimates that we have been given are well into the five figures; but even the cost of several thousand dollars would be an enormous imposition on this small company.

I want to be very clear: creating devices that steal credit card numbers are illegal and cause pain for a lot of people. We know our parts can be used for good or for evil. We have zero tolerance for those who use them for evil. I will offer our technical services to any law enforcement that may need help reverse engineering a device. It is obvious the law enforcement agency is requesting this information to put a stop to this activity. However, I also believe strongly in the right to privacy and the protection of personal data.

Please read the subpoena carefully. The request for 'all orders' seemed like they were casting a very wide net without cause. Discussing this issue with our counsel and working with the law enforcement agency, we agreed to obtain the orders that had the product on it, not all orders as required by the subpoena. This ended up being about 20 orders. In my opinion, one order is too much information. While I believe this legal process protects us all from wrong doing, turning over any piece of data goes against every fiber in my being. But without any further legal options, I made the decision to turn over the sub set of data.

I want everyone to know that we take your data and privacy extremely seriously. We guard it with the highest levels of security and confidentiality. If we are legally forced to turn over data, we promise you we will work with the law enforcement agency to do everything in our power to limit the amount of information released.

I work for Grooveshark. Here is some information from the trenches:

We are assigned a predetermined ammount of weekly uploads to the system and get a small extra bonus if we manage to go above that (not easy).The assignments are assumed as direct orders from the top to the bottom, we don't just volunteer to "enhance" the Grooveshark database.

All search results are monitored and when something is tagged as "not available", it get's queued up to our lists for upload. You have to visualize the database in two general sections: "known" stuff and "undiscovered/indie/underground". The "known" stuff is taken care internally by uploads. Only for the "undiscovered" stuff are the users involved as explained in some posts above. Practically speaking, there is not much need for users to upload a major label album since we already take care of this on a daily basis.

• Guido Fawkes
• @p0isAn0N
• @OccupyBoston
• #BostonPD
• #d0xcak3

In order to protect the confidentiality and integrity of the ongoing criminal investigation, this office asks that you not disclose the existence of this request to the subscriber as disclosure could impede the ongoing criminal investigation.

We entered the courtroom. I sat in the front row, behind the bar. Presiding Judge Carol Ball called our cooperating attorney Peter Krupp’s name, and the Assistant District Attorney’s name. She did not call out the name of the case to begin the proceedings, as is custom.

The ADA approached the sidebar, the area adjacent to the judge’s perch, far enough away from us, the general public, that we couldn’t hear the content of the hushed conversation spoken there. Krupp objected immediately, before even approaching the bench; he wanted the case heard in open court. (The judge had already sealed the proceedings the day before, pending a hearing this morning.) Krupp’s objection was not granted. Our legal team therefore approached the sidebar, joining the judge and the prosecution.

Then we among the general public, including journalists from all the major media outfits in Boston, listened and heard nothing, as the prosecutors, our lawyers and the judge conversed secretly, in plain sight. I have no idea what they said. I still don’t know, because my colleagues, lawyers at the ACLU of Massachusetts, are prohibited by court order from telling me.

So all I know is what I saw. As Donald Rumsfeld said, there are known knowns, known unknowns and unknown unknowns. After the proceedings this morning, I’m left with little of the former, and a whole lot of the latter two.

The known knowns: the scrum of lawyers, defense and prosecution, addressed the judge. I saw the judge speak to the lawyers. Then I saw our attorneys return to their bench, closer to where I was sitting, out of earshot of the sidebar. But the ADA stayed with the judge. He spoke to her, with his back to the courtroom, for about ten minutes. Our attorneys didn’t get to hear what he said to her, didn’t have a chance to respond to whatever the government was saying about our client, about the case. It was frankly shocking.

After those ten minutes of secret government-judge conversation, our attorneys were invited back to the sidebar, whereupon the scrum of lawyers spoke with the judge for another ten or fifteen minutes. Then they dispersed. The judge uttered not one word to the open court. And that was it.

In fact, because Coakley knew that he had obtained this information in the face of a pending motion to quash the subpoena asserting that the Doe had a First Amendment privilege to speak anonymously, he not only had no right to obtain had no right to use the information against Doe, but he had an obligation to return the information pending a resolution of the discovery dispute.  That is because Michigan, like most jurisdictions, has a discovery rule protecting against the misuse of information that has been obtained despite a claim of privilege.  In Michigan, Rule 2.302(B)(7) provides that

•     If information that is subject to a claim of privilege or of protection as trial-preparation material is produced in discovery, the party making the claim may notify any party that received the information of the claim and the basis for it.  After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved.  A receiving party may promptly present the information to the court under seal for a determination of the claim.  If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it.  The producing party must preserve the information until the claim is resolved.

Because Coakley is the head of the litigation department at a prominent Detroit law firm, he must have been aware of this rule.  In fact, his letter could be read as expressing some defensiveness about his obligations, because he began by emphasizing that the disclosure really wasn’t his fault: the disclosure had occurred, he said, “without direction from us (other than the subpoena itself).”  But the California subpoena was served after the motion to quash was filed in Michigan, and the threat to use the privileged information to exact concessions from Doe, and the subsequent filing of an amended complaint and other papers prominently displaying Doe’s name, seem to have been deliberate violations of the rule.  Coakley has not responded to my requests for information and for comment on my concerns.

Given how marginal his client's defamation claims against the Doe are, Coakley may have felt he had no choice but to skirt the ethical edge by violating this rule.  (The linked complaint, which was a draft attached to Coakley's demand letter, reflects a false name; by the time it filed the amended complaint, it had used the disclosure to identify the Doe and put that name in the complaint).  Coakley markets himself to potential clients by proclaiming his reputation as “a scrapper in protecting their  interests.”   As I see it, Coakley’s scrappiness took him a few steps too far in this case.

It is a basic matter of fair business practice that a consumer should be able to contact a utility about a charge on a bill and learn what the charge is for and learn that the charge was correctly applied. The only verification that Verizon's witness could offer that a charge like [the customer's] $4.19 measured use charge was accurate and billed correctly was her faith in the accuracy of Verizon's computer system. The only way that Verizon would offer any information about a past charge in response to a consumer inquiry was to require that customer to hire a lawyer and subpoena their own usage information. By no reasonable standard could this be considered reasonable customer service.

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.

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 to prosecutors out of pursuing subpoenas, and sometimes it beats them in court.  (It appears that Gannett adopted a firm policy in response to an embarrassing incident involving one of its own papers.).

"Should you decide that you wish to disclose the existence of this subpoena and its contents to anyone, including the account holder, it is requested that you contact the deputy attorney general named on your subpoena and so advise him or her before any disclosure so he or she can determine whether or not to seek a court order from the supervising judge prohibiting disclosures under section 4549(d) of the Investigating Grand Jury Act, 42 Pa. C.S. 4549 (d)."

Comcast notified its subscriber in this case, one Mr. Simko, of Worldwide Film Entertainment's efforts to learn Mr. Simko's identity.

And here's the part that makes this little vignette so charming: rather than challenge the plaintiff's efforts to unmask his identity, Mr. Simko filed a motion to quash the subpoena USING HIS REAL NAME.

The court denied the motion to quash. The basis for denying the motion is kind of an aside (the motion to quash phase was not the right time to challenge venue or knowledge of the infringement).

What's noteworthy about the case is Mr. Simko's decision to voluntarily waive his anonymity. Not only did he challenge the subpoena using his own name, he filed as an exhibit the letter he got from Comcast notifying him of the subpoena. Right there, in all caps and as plain as day were Simko's name and address for all to see.

Worked with these people on several deals and they are to be avoided unless you are desparate. Beaus Laskey, the only honest straightforward person in the bunch, has left the firm.

Shoemaker has not offered a shred of evidence to support his speculations. He has, he says, had his suspicions aroused because she has so much information. Clearly he is unfamiliar with the extent of the information which a highly-competent librarian like Ms. Seidel can, and did, accumulate. If Shoemaker wanted to know if Ms. Seidel was in part supported by or provided information by Bayer, he could have inquired of Bayer or limited the Seidel subpoena to that information. Instead he issued the subpoena calling for production of documents and a deposition on the day before he stipulated to dismiss the underlying suit with prejudice. His failure to withdraw the subpoena when he clearly knew that suit was over is telling about his motives. His efforts to vilify and demean Ms. Seidel are unwarranted and unseemly....

I find that Clifford Shoemaker violated Fed. R. Civ. P. 11(b)(1) and Rule 45(c)(1).... The 11(b)(1) violation may also violate Virginia's Rules of Professional Conduct .... Clifford J. Shoemaker’s action is an abuse of legal process, a waste of judicial resources and an unnecessary waste of the time and expense to the purported deponent.

The Clerk of Court is directed to forward a certified copy of this order, the motion to quash, the show cause order, and the response of Shoemaker and Seidel to the appropriate professional conduct committee of the Virginia State Bar in order that it may be made aware of Clifford J. Shoemaker's conduct and so that those authorities may take whatever action they deem appropriate.

As a sanction from this court, Clifford J. Shoemaker is ordered to attend within three months, a continuing legal education program on ethics and on the discovery rules in the Federal Rules of Civil Procedure. He is ordered to file a certification of completion of the programs.