Why Didn't Google Or Comcast Protect The Identity Of Anonymous Church Blogger Who Was Outed?
from the criminal-subpoenas-deserve-privacy-too dept
You may recall the story we discussed recently concerning a church in Florida, where one member of the church was anonymously blogging critical comments about the church. Another member of the same church, who was heavily involved in the church hierarchy, was also a local police officer and used that position to get subpoenas and to reveal the blogger’s identity. Once he did so, he dropped the investigation, destroyed the records and told the church leaders who it was. The whole thing was highly questionable. At the time, we questioned why the state’s attorney was willing to issue subpoenas on such an issue.
Paul Levy wanted to know the answer to another question: why did both Google and Comcast cough up this guy’s identifying information without even giving him a chance to quash the subpoenas. He asked both companies and the answer he got is, basically, that they immediately cough up info if it’s a criminal subpoena rather than a civil one:
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.
Considering how frequently we hear stories of governments abusing their investigative power, it’s a bit troubling that these companies do not, in fact, go further in protecting their customers’ rights even in cases of criminal subpoenas. Levy notes that, unlike those two companies, many actual media companies are much better at resisting criminal subpoenas when appropriate:
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.).
This is a good point and one that doesn’t get much attention in the tech space. Hopefully, more tech service providers will begin to recognize that their customers have rights in criminal investigations as well as in civil lawsuits.