Archive for Tuesday, January 8, 2008

Troublesome tactic

Recent attempts to use a search warrant to access Journal-World computer files should raise an alarm for all those concerned about First Amendment rights.

January 8, 2008


Related document

Search Warrant ( .PDF )

Once again, we are reminded of the importance to a democracy of preserving a free and independent news media.

That reminder came in the form of a search warrant delivered to the Journal-World last month by an investigator for the Kansas University police department. The warrant was intended to give the KU police access to the Journal-World's computer servers so they could examine the J-W's online subscriber files.

The warrant, which was sought by the KU Office of Public Safety, reviewed by the Douglas County District Attorney's office and issued by Douglas County District Judge Stephen Six, was aimed at identifying a single poster on the J-W's Web site. The poster had made comments about an article reporting on the death of a KU student in an Oliver Hall dorm room. Rather than request a subpoena for that specific piece of information, officers chose a sledgehammer approach that would have given them access not just to a single piece of information but anything else they found interesting on the newspaper's computer servers. And they would get immediate access to that information without the newspaper having an opportunity to examine or object to the request.

This use of a search warrant is a gross attack on First Amendment provisions that protect newspaper files and sources - and an attempt to unnecessarily invade Journal-World files. Investigators could have pursued a number of other e-mail avenues and first-person sources to obtain the information they sought but chose instead to use Journal-World files to engage in a fishing expedition. Their action infringes on the rights of the J-W, but, more importantly, it infringes on the public's right to freedom of speech and a free media that can provide information without government interference.

The Journal-World strives to be a good citizen and has a record of cooperating with law enforcement when it is in the public's interest. Within the past year, the Journal-World has been subpoenaed twice to provide the identity of online posters and subsequently provided the information in both cases.

The search warrant, however, is a far more open-ended investigative tool. If the newspaper is forced to open its servers and files to police through warrants, it becomes an investigative arm for government law enforcement. That's hardly the proper role for a free and independent news media.

Even District Attorney Charles Branson told the Journal-World later that he wasn't sure why his office didn't encourage KU investigators to seek a subpoena rather than a search warrant. Nonetheless he appears willing to dive into what he referred to as the "uncharted ground" of applying federal laws to online issues and argue that the use of a search warrant is justified.

Media experts disagree and believe the laws on the matter are clear. The Internet may have changed many aspects of our lives, but it hasn't given the federal government the right to subject the nation's news media to searches that essentially turn them into agents of government law enforcement.

The KU search warrant was a blatant attack on freedom of speech and should raise an alarm not only with the nation's news media but with the public at large.


Kathy Theis-Getto 10 years, 5 months ago

When these issues make it through the courts, it will be interesting to see how the "free speech" claims hold up. If this is, indeed, a constitutional issue, idoes it opens the door to make all the "anonymous" Keyboard Kowards into reporters who are protecting their sources? Give me a break. While I am a bit sympathetic to the Journal World's position, they are stretching logic by defending people who claim to have inside knowledge about a crime and treating them like staff members. If LJW continues to allow some of the trash put up on their site to remain, they will likely suffer the fate of the Topeka forum, which was essentially shut down by a couple of Keyboard Kowards as they assaulted and defamed their way through the various conversations on the Capital Journal site.

akt2 10 years, 5 months ago

There are a lot of people that have access to very confidential information. Either thru their work or their spouses or friends work. This includes demographics, financial, criminal, medical records etc. These people need to keep their mouths shut, or at least not blog about it. When they do feel the need to tell everything they know, I hope they get caught. By whatever means necessary. No one would have any positive information regarding a so called death that involved heroin, unless they had seen lab results or something like that. I say the blogger was talking out their hat. If not they probably violated a HIPPA law.

azraiel 10 years, 5 months ago

Valkyrie and enforcer,

You are both incorrect in your assessment of this as a "free speech" issue. It is not. It is a free press issue, wherein anonymity is a very important consideration. Please read the first amendment--you'll find five (and a half) distinct and separate rights enumerated there. Perhaps a course on Constitutional law would help, as well. Until then, your suppositions are worse than useless--they simply confuse the issue and distract attention from the real issue.

azraiel 10 years, 5 months ago

Actually, upon second reading I see that the editorial writer framed it as a speech issue, which is really stupid. Someone should smack the person responsible upside the head.

The writer is attempting to engage public sympathy by invoking a right that everyone has (speech), whereas (as the maxim goes) only those who can afford a press have freedom of the press (no longer necessarily true with the internet, but maxims have a certain inertia).

Shame on the paper. It should be elucidating the issue, not obfuscating it. Someone give that writer a swift kick.

johnwoods 10 years, 5 months ago

The whining Journal-World needs to get its act together. If they want to claim that individuals posting comments are part of the news gathering and reporting business then make them post real names and addresses like you do for letters to the editor. You have two separate policies for the same function.

It is a stretch to state that the postings are news-gathering related and not entertainment.

fu7il3 10 years, 5 months ago

Which is what bothers me. Why is ljworld trying so hard to make this an issue. This is the same article, slighty more opinion (but not much) as yesterday. There is no new information. Yet here it is, the World Company trying to make itself look like the shining beacon of freedom on a hill when this investigator apparently never even attempted to the force the issue. The investigator left, and never came back.

So where is this sledgehammer approach I keep reading about? I'm really sort of sick of reading about it. It just comes off a whiny and excessive considering no more than apparently happened.

BlackVelvet 10 years, 5 months ago

Don't you realize, fu7il3, that in this town, anything the Police do is automatically wrong and a deliberate violation of someone's rights. It's what cops do. What's wrong with you anyway?

justthefacts 10 years, 5 months ago

Warning; I am departing from "just the facts" to express a personal opinion:

I find it interesting that any media outlet fights providing their records to anyone when they are the first and loudest to scream FOUL any time anyone denies them access to records or information! The door swings both ways people. If you want privacy, you need to give it to others. If you think you should get to see/know everything, then be prepared to have that rule cover you also! The media believes it can wisely decide what should become public and what should not. But they do not trust the court system or police to do the same? Huh? Since when are reporters and their editors more ethical then the courts or cops?

And yes, there is a big difference between privacy rights and freedom of the press. Perhaps the reason the editorial writer leaned on privacy rights is that freedom of the press is hard to prove in this case - so they're hoping that their attempt to protect the identities of commenters etc. will strike fear in the hearts of trolls or blabber mouths everywhere. What is probably really going on is that the media hates HATES to divulge any information. Rather, they are in the business of finding out information about everyone else!! Not vice versa. Shoe on the other foot feels bad, huh?

fu7il3 10 years, 5 months ago

Apparently I've been deluded by living places where the cops yell search warrant, kick in the door, then take the stuff without asking. This whole, sure you can call your lawyer thing is new to me.

Ralph Reed 10 years, 5 months ago

This whole thing goes back to what I talk about a lot on this forum --- Anonymity.

The ability to say whatever you wish and not be held accountable is seemingly the basis for many comments on this forum. I contend that users of this forum must be verified before they can post.

I doubt this is a speech issue, especially on the part of the LJW. The usage rules indicate that posters essentially release to the paper all rights to their posts. They do not, however, call the posts "works of the LJW or it's agents". So, as I see it, there are no free speech issues on the part of the LJW. It's simply a matter of the paper wanting to uphold anonymity, which in my opinion indicates the LJW supports drive-by ad hominem posts. This, in effect, keeps the level of discussion quite low and gives the masses the feeling they're actually having a say in something that goes on in this town.

I post to this forum under my name. I write letters to the city and county commission (my commuting hours preclude my being able to attend most, if not all of the meetings), so they know my opinion. I don't support the LJW as it stands behind the anonimity of posters to this forum.

How is it that all this arrises because the local constabulary was trying to find out why a young man was found dead in his dorm room? It's sad the paper and many of you here seem to want to keep his family from finding out what happened. Well done.

Chris Golledge 10 years, 5 months ago

My two cents.

I was under the impression that search warrants typically have to be specific about what is being sought and where that search will take place. From a purely physical perspective, some hard drives are being searched (I presume that the servers are storing the recent information on hard drives.), which seems like a small thing and would meet that expectation. However, since those same hard drives could contain every bit of information about the business and every interaction that business has had with employees and the public, the reality is that the warrant covered a universe of possibilities. (At least as the article is written.) That would be outside of normal expectations, at least mine.

Imagine if someone had written you a letter and somehow the police found out that letter contained information which interested them. It sounds like the warrant granted the police access to all other correspondence you may have received, your bank accounts, medical records, etc., all in the name of looking for information about who sent you that letter. That's not a sledgehammer; that's a nuke.

I don't think the police are bad; I just think that information technology has outpaced the understanding of everyday people and the laws are written and enforced by people who typically aren't that IT savvy.

I think the police are absolutely entitled to any information someone puts out in a public forum, but if the search warrant really covered all information on the JW's servers, that would be clumsy at best.

kneejerkreaction 10 years, 5 months ago

Maybe if the judicial system were more respectful of people's time they'd get more cooperation.

Kathy Theis-Getto 10 years, 5 months ago

Summers_Eve (Anonymous) says:

From reading some past comments, at least one former Capital Journal user is now here causing trouble:I believe was apparent to all who this particular person in question was-a so called 'centrist'. Centrist? Right.

I suspect you are wrong in your beliefs about this "particular person" since this person has not yet sanctioned the killing of police, molestation of young boys, nor the brutal rape of a prison inmate by two-legged and four-legged animals.

Charles L. Bloss, Jr. 10 years, 5 months ago

If you have nothing to hide, why are you so upset? Thank you, Lynn

Ralph Reed 10 years, 5 months ago

Not quite sure what you're getting at Kathy. But, if I'm right then a lot of folks on this forum feel they have something to hide.

BlackVelvet 10 years, 5 months ago

Enforcer, I believe the earlier articles about this unattended death said there were no "apparent" signs of foul play. I haven't read anything that they have made a final determination. Perhaps they want to be thorough.

rachaelisacancer 10 years, 5 months ago

I think most (not all) people are missing the point here. The point is, it appears that one particular person who posted on one of the previous articles about the student at Oliver Hall may have had information that could help the police with their investigation concerning his death. That person doesn't have anonymity - were they a reporter or a regular joe, and whether they disclose their personal information alongside their posts is irrelevant. Any individuals with information about a crime are subject to questioning, subpoena, etc. and whatever (I'm not a lawyer...).

The problem - i.e. the purpose of this editorial - is that these law enforcement officials knew exactly who and what they were looking for (and if I could make a wager it would be the individual who made comments about the young man who died having a "pill" problem). Therefore, the investigators should have submitted a subpoena requesting that specific information for that poster as opposed to a search warrant which grants them access to the entire J-W database.

By issuing this search warrant as opposed to that subpoena, the police have access to a plethora of information that is in no way relevant to who and what they are looking for. Mind you, just because it isn't relevant doesn't mean it isn't interesting and wouldn't be used by the police in other matters.

The bottom line is that the police knew specifically who they were looking for and should have asked specifically for that information. Instead, they used a sneaky little "let's see what else we can get" method and thereby transformed the J-W into an arm of the law (as the editorial stated).

It may sound like a slippery slope situation and the general public may fail to see that this is not about protecting an individual poster but about protecting the information gathered by reporters and news staff, which is crucial to the purpose of a free press...

But think of it this way (a very wayward and extremist example) - if the police knew that you had a phone conversation at 9:20 p.m. on the 20th of December and they felt recording that conversation could prevent a terrorist attack - would you want them to issue you a subpoena for that single conversation or would you be okay with them recording ALL of your phone calls? (And yes, I'm well aware that things don't work that way but it's the best example I can come up with this early...)

Anyhow, if you don't get the whole "free press" thing maybe you should brush up on some constitutional law. That whole first amendment thing really works for us (the public) if we fight to protect it. Knowing what the press is for, why we should protect it, and why we should fight for the uncontrolled use of it could very well change the way you view the American media (meaning if you think it sucks now, just wait!).

BlackVelvet 10 years, 5 months ago

Does anyone here know the exact wording of the search warrant? Is it possible the warrant specified one particular user? If the LJW were to release the wording of the warrant, would that answer some questions?

fu7il3 10 years, 5 months ago

I'd say a dead college kid is a harmful result. Regardless of what was done or should have been done, it's discouraging that so many people care about whether or not a police department was out of line, and so few care that what they were looking for could have been part of finding out how he died.

We've all be sitting around at our computers, uninvolved in the thing, complaining about constitutionalities when one of the people that constituation was made to protect is dead and his parents and friends have to live the rest of their lives with that. I'm not pointing fingers. I'm guilty of it, too

LJW has had two stories about how they are challening police in the name of free speech. Was it not an option to look at the search warrant and give the police the information? That way, police don't get in the files, but still have the chance to do their investigation. Seriously, was it worth it?

Congrats, you foiled the cops. The kid is still dead.

fu7il3 10 years, 5 months ago

"DL my point is the poster came back & posted he had heard this info so he would not know anything except another person told him for sure"

Except that the police didn't have that information at the time that the story originally came out. He didn't post that until after the article came up.

I wasn't saying that the search warrant killed the kid. I was just saying that if the poster knew anything, refusing to give information to the police didn't help anything. The media exists to help the public as well as to further the transmission of ideas. I don't see how this helped the public.

Protecting sources is great, but this was hardly a source. Other message boards probably wouldn't get the same protection. It should be for all of them or none of them. This board has nothing to do with the publication of the paper except they are both run by the World Company, which you could argue is a corporation, not the media.

BlackVelvet 10 years, 5 months ago

Thank you Enforcer. I just read the warrant. It appears to me that the only thing the cops were looking for was the identinty of the person "a2thek". I don't see anything that would indicate the cops wanted to, as the JW article stated "access not just to a single piece of information but anything else they found interesting on the newspaper's computer servers." But I guess stretching things does make for a more interesting "story."

bearded_gnome 10 years, 5 months ago

nice to see "the sky is falling" screaming and bush-blaming absent this time, thank God!

I will note again, still no comment from A2THEK. in a late addition to the original story, A2THEK stated that his/her information was based on overheard information-what shouldn't have been picked up. now, of course, this was posted after the legal moves and I wonder if A2THEK was trying to cover a posterier.

finally, I will note again the ljworld editors go into high dudgeon about this freedom of the press but they apparently favor open-boarders and preventing enforcement against illegal immigration. so, high dudgeon when it is in their house, but when it comes to depressing wages, americans' loss of jobs, overtaxation of prisons, hospitals and schools, the dudgeon seems not to be there; they don't care. and instead they wish for the destruction of america as we know it.

fu7il3 10 years, 5 months ago

Actually it is your job as an American citizen. The system only works if the people take interest. It's part of being a government of the people.

fairylight 10 years, 5 months ago

It should be every concerned citizens 'job' to help crack down on the drug dealers. If heroin is being sold to my kid, one living in the dorm I want to know. Hopefully before something of this nature happens.

For someone to say it's not their responsibility speaks volumes of the quality of person making the statement.

It takes a village - to counter the damage the village idiot can do.

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