Defending bloggers and the first amendment

We have stepped in to defend a blogger against a motion to compel him to identify the author or authors of two anonymous comments to one of his stories.  The First Amendment and other arguments are interesting in themselves, but it currently appears that

the case is going to become important for a different reasons – the subpoenaing party appears to be claiming the right to a forensic examination of the blogger’s computer system to see whether discarded identifying information can somehow be retrieved.

The case involves Escape Media Group, the host of a music streaming web site that is currently defending lawsuits brought in New York federal and state courts by various record labels accusing it of copyright infringement.  The blogger had written several stories about the controversy.  On one story reporting about complaints by a band member about the hosting of his music, an anonymous commenter, claiming to be an employee of Escape Media, posted comments purporting to “blow the whistle” on the creation of quotas for employee uploading which, in turn, encourages employees to grab  copyrighted recordings for the streaming site without the owner’s consent.  The plaintiffs in one of the copyright actions actually cited one of the anonymous postings in arguing that they had a legitimate basis for alleging copyright infringement.

Escape then sent a subpoena to the blogger claiming both that it needed to know who the poster was to know how to sue for defamation, and that it needed the identity of the poster in order to show that the basis for one of the allegations in the complaint is false.  The blogger began by representing himself pro se, claiming protection against the subpoena based on both the “Dendrite” standard and the California shield law.

We decided to represent the blogger because it seemed to us that the argued basis for the subpoena was transparently spurious.  To be sure, the anonymous posts said things about Escape Media that could damage its reputation, and that could well be defamatory if false.  But Escape Media wasn’t actually suing for defamation (and its reply brief seems to step away from the desire to sue for defamation as a ground for the subpoena).  And anonymous posts are not admissible evidence in the underlying infringement lawsuits; so showing the falsity of the anonymous comments would not, in itself, aid the defense of the lawsuit.  Indeed, the truth or falsity of claims about what Escape Media tells its employees to do, and what those employees actually do, can only determined through discovery of those employees and, perhaps, a careful review of Escape Media’s own documents (and computers).

A second argument against the discovery is that the anonymous comments are the blogger’s sources.  I recently argued as amicus curiae in a Doe case in which the newspaper also made an argument under Indiana’s shield law; although our brief was only on the First Amendment issue, I confess that I was a bit skeptical of the shield argument based on the facts of the case and the language of the Indiana statute. But our client in this case presents somewhat different facts, because he regularly engages with his anonymous commenters by joining the discussion in the comments, and he uses the comments as a basis for stories.  And he has reason to fear that if the commenters are readily identified, his access to comments will dry up.  So the facts that he never learns the identity of the commenters, and that he allows the commenters to publish without intermediation, are consistent with their being “sources” in the usual sense of the term.  We decided to embrace the California Shield Law argument in our brief.

But the most interesting aspect of this case still lies a bit below the surface.  Our client allows his servers to record the IP address of anonymous commenters, but promptly discards the information because he has no business reason to retain it, has limited storage space and, indeed, wants to keep his sources’ identities confidential.  So we have argued that the subpoena motion is moot.  Escape Media, though, it arguing that deleted data doesn’t really disappear, and seems to be laying the groundwork for an attempt to seize our client’s computers to conduct a forensic search for any identifying information that it can find.

Somehow the prospect of letting a company search a journalist’s files — especially the files of a journalist that it has publicly placed on its enemies’ list (for example, here and here) in the hope of finding useful deleted information is a chilling one.  I have been through such a case before – at the dawn of the e-discovery age, when Northwest Airlines was allowed to compel two union dissident bloggers to turn over their computers for examination.  In the end, the airline ended up with egg on his face (its hometown paper ran a nasty Steve Sack cartoon using the parody phrase “some people just know how to pry”) and the federal magistrate judge who let the search happen was telling his colleagues that he knew he had made a mistake.

It will be interesting to see how this case develops.

Paul Alan Levy is an Internet freedom of speech expert and senior litigator with Public Citizen’s Litigation Group. Follow him on Twitter @PaulAlanLevy.