Friday, April 04, 2014

The Blog, the Subpoena and Anonymity

This post examines the effort a defendant in a federal criminal case went to in an effort to obtain the real identities of two anonymous bloggers whose posts about her made her believe they might be “government officials”.  U.S. v. Jackson, 2014 WL 1251069 (U.S. District Court for the Eastern District of Louisiana 2014). As the opinion notes, on

June 6, 2013, the Grand Jury in the United States District Court for the Eastern District of Louisiana filed a four-count Indictment against defendant, Stacey Jackson, charging her with conspiracy, solicitation of bribes, theft of federal funds and obstruction of justice in connection with her former employment as the executive director of the New Orleans Affordable Homeownership agency (`NOAH’). Approximately five years prior, the Times–Picayune posted articles on regarding potential corruption within NOAH. Many bloggers commented on these articles. . . . .

U.S. v. Jackson, supra. The conspiracy charge against Jackson was brought under 18 U.S. Code § 371; the bribe charge was brought under 18 U.S. Code § 666(a)(1)(B); the theft charge was brought under 18 U.S. Code § 641; and the obstruction of justice charge was brought under 18 U.S. Code § 1503(a).  Indictment, U.S. v. Stacey Jackson, 2013 WL 8151055. 

The judge’s opinion then explains that

Jackson filed an ex parte motion for issuance of a subpoena duces tecum to the Times–Picayune and production prior to trial pursuant to Rule 17(c) of the Federal Rulesof Criminal Procedure seeking information that would identify two of the bloggers, `aircheck’ and `jammer1954.’ . . . Jackson argued that posts authored by `aircheck’ and `jammer1954’ in response to articles about her or NOAH `obviously indicate government inside action,’ contain `verbiage akin to prosecutorial information and efforts; and obvious efforts to pressure suspects and targets of the investigation to cooperate with the government.’ . . . She contended that if these bloggers are government officials, such information would support a motion to dismiss the Indictment against her on prosecutorial misconduct grounds. The magistrate judge granted Jackson's motion . . . and a subpoena was issued to the Times–Picayune ordering it to produce to Jackson's counsel by February 3, 2014:

All documents related to the identity of the user names, `aircheck,’ and `jammer1954,’ including but not limited to (1) registration information, documents that provide all names, mailing addresses, email addresses, downstream and upstream email chains, phone numbers, billing information, date of account creation, account information, passwords, and all other identifying information associated with `aircheck,’ and `jammer1954,’ and (2) the usage/login information related to `aircheck,’ and `jammer1954,’ including but not limited to documents that provide IP [Internet Protocol] logs, IP address information at time of registration and subsequent usage, computer usage logs, or other means of recording information concerning the usage of `aircheck,’ and `jammer1954,’ from January 1, 2008, to the present.

U.S. v. Jackson, supra.

The Times–Picayune then “filed a motion to quash the subpoena, arguing that the production was an unreasonable infringement on the bloggers' 1st Amendment right to anonymous free speech.” U.S. v. Jackson, supra.  The U.S. District Court Judge then did something District Court Judges often do:  She referred the Times-Picayune’s motion to a U.S. Magistrate Judge to review and write an opinion recommending that it either be granted or denied. U.S. v. Jackson, supra. 

This opinion then explains that in ruling on that motion, the

magistrate judge examined the factors established by the Supreme Court of the United States in U.S.v. Nixon, 418 U.S. 683 (1974) for the issuance of a subpoena under Rule 17(c) of the Federal Rules of Criminal Procedure, and weighed Jackson's 5th Amendment due process right against the bloggers' 1st Amendment right to anonymous free speech. . . . He noted that the right to anonymous free speech is not unlimited, especially if the speaker is a prosecutor or other federal agent, who is subject to rules and regulations that restricts his or her ability to comment on ongoing investigations or cases pending within the scope of his or her official responsibilities.. . .

The magistrate judge discussed the recent experience in this jurisdiction were the former First Assistant and former Senior Litigation Counsel in the local United States Attorneys Office admitted to blogging about ongoing investigations and cases on, under certain aliases and others that they could not recall. . . . He noted that after this conduct was revealed, `at least seven defendants and two investigation targets in three different proceedings [had] convictions [ ] overturned, [an] indictment [ ] dismissed or [ ] investigation [ ] dropped.’ . . .The magistrate judge ruled that, in light of such conduct, there was a `sufficient likelihood’ that the subpoena at issue could lead to information relevant to Jackson's prosecutorial misconduct claim.

U.S. v. Jackson, supra.

The U.S. Magistrate Judge therefore, “being mindful of the bloggers' 1st Amendment right to anonymous free speech,” ordered the Times–Picayune to submit the responsive documents to him for an in camera inspection” and also stated that”

If [he] determine[s] based upon [his] in camera review that aircheck and jammer1954 are citizens without connection to the prosecution, their 1st Amendment right to anonymous speech will outweigh the Due Process rights of the defendant and no further disclosure, production or inspection of the information will be permitted. Otherwise, whether and, if so, how and when the responsive information may be made available to the parties for inspection will be established by further order of the court.

U.S. v. Jackson, supra.

The Times-Picayune appealed that order to the U.S. District Court Judge, arguing that

any production of the information that may identify the anonymous bloggers, even for an in camera inspection by the magistrate judge, is an unreasonable infringement on the bloggers' 1st Amendment right to anonymous free speech. It argues that to obtain information regarding the bloggers' identities, Jackson must present `evidence that the specific posters here are in fact federal officials and that the speech on its face is unlawful, in violation of her due process rights.’ . . .

Jackson contends that she cannot prove that the bloggers are federal officials or that the speech is unlawful until she has the identifying information, and that the magistrate judge's modification of the subpoena to order an in camera inspection is `a great and fair compromise’ that protects `the anonymity of any blogger that [is] not shown to be a government person.’ 

U.S. v. Jackson, supra.

The District Court judge then explained that, under 28 U.S. Code § 636(b)(1)(A), she could “reconsider a pretrial matter determined by a magistrate judge `where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.’” U.S. v. Jackson, supra.  She also noted that, Rule 17 of the Federal Rules of Criminal Procedure

permits the subpoena of `books, papers, documents, data, or other objects.’ The court may direct that the items be produced before trial, and permit the parties and their attorneys to inspect all or part of them. . . . `A subpoena for documents may be quashed if their production would be ‘unreasonable or oppressive,’ but not otherwise.” U.S. v. Nixon, 418 U.S. 683 (1974); FED. R. CRIM. P. 17(c)(2).

U.S. v. Jackson, supra.

The District Court Judge also noted that the Nixon Court held that to require pre-trial production under Rule 17,

`the moving party must show: (1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and not intended as a general “fishing expedition.”’

. . . . Stated differently, the party seeking the production `must clear three hurdles: (1) relevancy; (2) admissibility; (3) specificity.’ U.S. v. Nixon, supra.  As to relevancy, the Court stated that there must be a `sufficient likelihood’ that the subpoenaed materials are relevant. U.S. v. Nixon, supra.  

U.S. v. Jackson, supra.

The District Court Judge then found, first, that the Magistrate Judge's

application of Nixon to the subpoena in question is not clearly erroneous or contrary to law. Considering all of the available information regarding the blogging incident in the local United States Attorneys Office, its impact on cases in this district, and the blogs regarding Jackson and/or NOAH authored by `aircheck’ and `jammer1954,’ there is a `sufficient likelihood’ that the information Jackson requested will lead to information relevant to her prosecutorial misconduct claim.

Further, she cannot obtain this information from another source, and it is necessary for her to prepare pretrial motions. Finally, the subpoena is not a `fishing expedition,’ but is narrowly tailored to seek information regarding two specific bloggers whose posts have substantial similarities to ones known to have been posted by former prosecutors. Therefore, the magistrate judge correctly determined that the subpoena complies with Rule 17(c).

U.S. v. Jackson, supra.

She also found that the Magistrate Judge

properly found that the bloggers have a 1st Amendment right to anonymous speech. Justice for All v. Faulkner, 410 F.3d 760, 764 (U.S. Court of Appeals for the 5th Circuit 2005). . . . He also properly recognized that the right to anonymous speech is not unlimited, and that such limitation applies `even more stringently to federal prosecutors and other government agents and official engaged in criminal investigation and prosecution,’ who are subject to `[a] plethora of court decisions, professional conduct rules, federal regulations, Local Rules of court and provisions in the Department of Justice's own United States Attorneys Manual plac[ing] restrictions on their speech.’ Doc. # 47 (citing U.S. v. Bowen,  2013 WL 5233325 (U.S. District Court for the Eastern District of Louisiana 2013)).

U.S. v. Jackson, supra.

She also found that in balancing

Jackson's need for the subpoenaed information against the bloggers' limited right to anonymous free speech, the magistrate judge determined that an in camera inspection would be the best vehicle to protect both interests. Indeed, the Nixon Court found that an in camera inspection of the requested material was warranted when the President claimed an executive privilege in an attempt to defeat a Rule 17 subpoena. 

Further, in U.S.  v. LaRouche Campaign, 841 F.2d 1176 (U.S.Court of Appeals for the 1st Circuit 1988), the court, in weighing a defendants' need for information sought under a Rule 17 subpoena against the National Broadcasting Company, Inc.'s (`NBC’) claim of journalistic privilege under the First Amendment, held that NBC's First Amendment interests did not outweigh the defendants' interest in the production of the subpoenaed material that was relevant to ensuring that the defendants had a fair trial under the 5th and 6th Amendments. In that case, the court concluded that in camera production was appropriate because the district court would `balance the competing constitutional interests, limiting disclosure of [materials protected by the 1st Amendment] to those cases where their use would, in fact, be of significant utility to a criminal defendant.’ U.S. v. LaRouche Campaign, supra.  The court further observed that:

`An in camera proceeding seems especially suited to the needs of all parties in cases like this—where there is a very likely need for materials by the defense, a very real if generalized concern about excessive disclosure on the party of the media, a judicial economy interest in avoiding delay during trial, and the possibility that by the time a decision must be made on disclosure to a party the need for disclosure will have disappeared or diminished.’

U.S. v. LaRouche Campaign, supra.

U.S. v. Jackson, supra.

The District Court Judge therefore held that in light of these authorities,

the magistrate judge's order in this case requiring an in camera inspection of the materials sought by Jackson from the Times–Picayune was not clearly erroneous or contrary to law. In his order, the magistrate judge specified that he would safeguard the identifying information of the bloggers if they are private citizens, but would determine what further actions are necessary if they are indeed government attorneys or agents. Therefore, the magistrate judge's ruling is AFFIRMED.

U.S. v. Jackson, supra.

If you are interested, you can read more about this case, and this particular issue, in the news story you can find here.

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