Friday, June 22, 2007

Outing "rats"

You may have heard about Who’s A Rat?, the website that claims to offer (and probably does) the “largest online database of informants and agents!” According to the site, it is
"a database driven website designed to assist attorneys and criminal defendants with few resources. The purpose of this website is for individuals and attorneys to post, share and request any and all information that has been made public at some point to at least 1 person of the public prior to posting it on this site pertaining to local, state and federal Informants and Law Enforcement Officers. This includes an Informant who makes his or her Informant status known to any person."

The website, which was created in 2004, is a paid subscription service and explicitly disavows any intent to “promote or condone violence or illegal activity against informants or law enforcement officers.” It also specifically notes that it does not portray “Agents or Law enforcement officers as rats or informants.”

You may have seen news stories about Who’s A Rat?, since many in the criminal justice system find it controversial, and threatening. As one news story explained, judges and prosecutors around the country are afraid the site will “cripple investigations and hang targets on witnesses.”

I haven’t seen reports of any efforts to shut the site down through litigation, presumably because it’s clearly protected by the First Amendment. There’s actually a federal district court opinion which reached precisely that result with regard to a completely different website.

In 2003, Leon Carmichael, Sr. was charged in the U.S. District Court for the Middle District of Alabama with drug conspiracy and money laundering. U.S v. Carmichael, 342 F.Supp.2d 1070 (M.D. Alabama 2004). Not long after he was arrested, Carmichael created a website dealing with his case:
After the site was altered . . . to display the names of four `informants’ and four `agents,’ as well as photographs of the four `informants,’ the government renewed an earlier motion for a protective order directing Carmichael to remove his website from the internet. On July 20, 2004, following an evidentiary hearing and after careful consideration of the issues involved, this court denied the government's motion, reasoning that such an order would impermissibly infringe on Carmichael's First, Fifth, and Sixth Amendment rights.

U.S v. Carmichael, supra.

The federal district court found, basically, that the site was protected by the First Amendment because it did not constitute a “threat” to anyone. United States v. Carmichael, 326 F.Supp.2d 1267 (M.D. Alabama 2004). The information on the site was clearly speech within the scope of the First Amendment, which means it is protected unless it falls into a problematic category of speech, such as what courts call a “true threat” to harm someone or child pornography.

Based on the evidence presented at the hearing cited above, the district court held that the testimony of informants, who said Carmichael’s posting their pictures and requests for their addresses on his site made them “fearful,” was insufficient to establish that the site posed a “true threat” to them. As I explained in an earlier post, a “true threat” is exactly what you think it would be: a communication directed at the would-be victim which says, in effect, “I am going to do you harm” of some kind. Here, just as in the case I talked about in my earlier post on this, there was no direct communication with a potential victim and no statement threatening to do them harm.

(The court also found, as you can see in the quoted excerpt above, that forcing Carmichael to take down the site would violate his Fifth Amendment right to due process and his Sixth Amendment right to prepare a defense to the charges against him, since the site sought information directly relevant to his case. I’m not sure either of those rationales would apply to Who’s A Rat?, though, since it’s not operated by a specific person asking for help in preparing her defense to a particular case. It might, I’m just not sure.)

After the district court refused to take the site down, DEA Agent David DeJohn, one of the agents listed on the site did something very unusual: He asked the court to let him intervene in the criminal case so he could, on is own behalf, ask the federal district court to order that his photograph be taken off Carmichael’s website. U.S v. Carmichael, 342 F.Supp.2d 1070 (M.D. Alabama 2004). DeJohn alleged that “the website is not only interfering with his ability to pursue his profession as an undercover agent, it is putting him in danger.” U.S v. Carmichael, 342 F.Supp.2d 1070 (M.D. Alabama 2004).

The federal district court denied DeJohn’s motion to intervene. It began by noting that allowing someone to intervene in a criminal proceeding is “limited to those instances in which a third party's constitutional or other federal rights are implicated by the resolution of a particular motion, request, or other issue during the course of a criminal case.” U.S v. Carmichael, 342 F.Supp.2d 1070 (M.D. Alabama 2004). The court found, basically, that DeJohn really had no “stake” in the criminal proceeding against Carmichael:
Although he asserts that he has a `personal stake in this litigation as it is his photograph that was stolen and posted,’ DeJohn has not . . . shown that he has an interest that will be affected by Carmichael's conviction or acquittal in this criminal case or . . . by any proceeding in this criminal case leading up to such. DeJohn may have been personally affected by Carmichael's use of his picture on his website, but the website itself is not the issue in this case. The sole purpose of this criminal action is the adjudication of Carmichael's guilt or innocence. . . . .

DeJohn does not claim the infringement of any interest conferred on him by any provision of the United States Constitution or any federal statute. To be sure, DeJohn would have benefitted had the court ordered the removal of the website from the internet at the government's request. But any interest DeJohn has in the website's removal is not based on a legal entitlement specifically belonging to him in Carmichael's criminal case. Rather, his motion to intervene is an effort to resolve what is essentially a private dispute based, if anything, on state law.

U.S v. Carmichael, 342 F.Supp.2d 1070 (M.D. Alabama 2004). So the federal court denied his motion to intervene and told DeJohn to sue Carmichael in an Alabama state court if he wanted to try to have his photograph removed from Carmichael’s website.

I have no idea if Agent DeJohn ever sued Carmichael or not. I can’t find any news stories or reported cases involving such a suit.

Carmichael’s website – -- is still online, but seems to have been abandoned. According to a relatively recent news story, Carmichael was convicted in 2005 of drug trafficking and money laundering and was sentenced last March to serve 480 months in prison. Montgomery Businessman Sentenced to 40 Years for Drug Trafficking, U.S. Federal News, 2007 WLNR 5923762 (March 23, 2007).

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