Search Warrant ( .PDF )
A local judge, the district attorney and the Kansas University police department are being roundly criticized by First Amendment advocates for a search warrant that sought access to online subscriber files of the Journal-World.
On Dec. 10, an investigator with KU's Office of Public Safety delivered a search warrant to the Journal-World demanding access to the newspaper's computer servers. The search warrant - applied for by the office of public safety, reviewed by the Douglas County district attorney's office, and issued by Douglas County District Judge Stephen Six - was seeking information about the identity of an individual who had posted anonymous comments on ljworld.com, the newspaper's Web site.
Investigators were seeking the identity of a poster with the screen name a2thek, who had posted comments related to articles about a Kansas University student who was found dead in an Oliver Hall dorm room. The poster had made comments indicating the death was heroin-related.
First Amendment advocates said the decision by local authorities to serve a search warrant on a media organization was troubling.
"Issuing a search warrant to a newspaper is completely inappropriate," said Mike Kautsch, a KU law school professor and former dean of KU's School of Journalism. "It is a way of chilling the process of gathering and reporting the news."
Journal-World leaders also objected, and said they were concerned that future searches could paint the Journal-World as an investigative arm of local law enforcement.
"What we see is that more and more frequently, law enforcement is scrutinizing the postings on our Web site and is attempting to use what we consider fishing expeditions to come after the identity of individuals," said Ralph Gage, director of Special Projects for The World Company, which publishes the Journal-World. "We do feel an obligation to the people who use that site to not be an automatic conduit for law enforcement."
A spokesman with KU's Office of Public Safety denied assertions that his organization had overstepped its bounds by seeking the identity of the anonymous poster, although he declined to provide specifics about why the information was needed. The spokesman said he could not comment because the matter was still part of an open investigation.
"Our job is to find out information, and if it is pertinent to the case we will attempt to get it in any legal manner that we can," said Chris Keary, assistant chief of the KU department.
Judge Six also declined to comment for this article.
The Journal-World ultimately was not made to supply information regarding the identity of the poster. When presented with the search warrant, the newspaper was given the opportunity to call its attorney, who contacted the district attorney's office and the court to object to the search warrant. During that time period, the KU investigator left the Journal-World offices without executing the search warrant and did not return.
Bernard Rhodes - a Kansas City, Mo., attorney representing the Journal-World - said he believed the search warrant was issued contrary to a federal law that greatly restricts the ability of law enforcement to conduct searches of news-gathering organizations.
"Congress has determined that the First Amendment is emasculated by allowing armed law enforcement to come into a newsroom to gather whatever information they want," Rhodes said. "That is the type of practice you used to see in the old Soviet Union."
Rhodes said Congress in the 1980s passed a law - the Privacy Protection Act - that prohibits such searches of news-gathering operations.
But Douglas County District Attorney Charles Branson said it can be argued the law allows for searches related to the identity of an online user. The 1980 law, he said, didn't contemplate a world of online blogs and the role they could play in criminal investigations.
"The best thing I can say about the Privacy Protection Act of 1980 is that it needs to be revised," Branson said. "What it hasn't been able to do is keep up with the times. In 1980, they had no clue what a blog is and how it would operate. They didn't understand that people would basically be able to spray paint on it like a graffiti wall and move on."
Specifically, Branson said he did not believe an electronic file containing information about the identify of an online poster could be considered the "work product" of the newspaper. The Privacy Protection Act generally restricts the ability of law enforcement to execute search warrants for work products - reporter's notes, photographs, source documents and other similar files - but leaves open the possibility of search warrants for other types of documents or information a news organization may have.
"I think it is pretty uncharted ground right now," said Branson, who said the courts have not yet made a landmark ruling on how the Privacy Protection Act deals with online issues. "I think it will have to be brought to a head at some point in time and get the definitions updated so everybody knows what the rules are."
A prominent national media attorney, however, said the rules are clear enough now that local authorities should have known better than to pursue the warrant.
"I don't think an online poster is any different than a letter to the editor, and certainly a letter to the editor is covered under the law," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "There is no question in my mind that the Privacy Protection Act applies here."
Question of trust
The legal debate is producing high stakes for all involved, journalism and law enforcement leaders said.
Dalglish said it would be highly detrimental if search warrants are more frequently served on newsrooms.
"The media's job is to ensure that the public gets access to truthful information," Dalglish said. "If the media are viewed as an arm of government that just turns information over to the police, people will stop talking to the media. They'll think you'll just get them in trouble. It has that classic chilling effect."
But Branson, the district attorney, said prohibiting law enforcement from seeking the identity of online posters can hamper criminal investigations. Branson said he would never argue that law enforcement should have unfettered access to the information in media files, but said he wants a reasonable test to be created that would allow future searches when needed.
"We solve a lot of our cases because the person who committed the crime just had to tell somebody about it," Branson said. "They shouldn't get an 'olly olly oxen free' pass just because the person they told was an anonymous blogger."
Journal-World leaders, however, contend there are other ways for law enforcement to obtain the information. For example, the newspaper has twice been subpoenaed to provide the identity of online posters.
Once was during the arson/homicide trial related to the Boardwalk Apartment fire. During the trial, the Journal-World was subpoenaed to provide the identity of a poster who had previously had a conversation with the defendant about arson. The Journal-World found the request reasonable, Gage said, and did not object to the subpoena.
The other subpoena was related to a Web site user who had posted on an article regarding a federal investigation of the Yellow House, a Lawrence thrift store. The Journal-World ultimately complied with that subpoena after determining that it had no firm ground to oppose it.
But Gage said the subpoena process - unlike a search warrant - gives the newspaper a chance to go before a judge and object to providing the information. A search warrant gives law enforcement the right to immediately enter the premises and begin its own search.
Branson said he generally agrees that a subpoena would be a preferable method for getting information from a news organization. He said he's not sure why his office didn't do more to encourage KU investigators to use a subpoena rather than a search warrant. Keary, the assistant chief at KU, declined to comment on the issue.
Law enforcement, like all ljworld.com users, also has the ability to e-mail an anonymous user through the newspaper's Web site. In this case, the anonymous user - when reached by the Journal-World through the e-mail method - said police had not attempted to reach him in that manner.
First Amendment advocates said law enforcement should be made to exhaust such means before compelling news organizations - either through search warrants or subpoenas - to reveal the identities of sources or posters.
Scott Bosley, executive director of the American Society for Newspaper Editors, said he urges his members to be diligent in protecting the independence of the press.
"We feel like we have grounds to resist these searches, and we believe we should resist them as vigorously as possible," Bosley said. "If we don't, the ramifications will be that we lose the public's trust. Readers and visitors to our Web sites just would refuse to trust us, and we don't have much going for us other than the public's trust."