Anonymous comments on newspapers blogs are drawing attention from prosecutors seeking information about criminal matters, once again raising the issue of whether newspaper blog comments are protected under state press shield laws. Last fall, I wrote about two civil cases involving claims of defamation, where two separate courts refused to order newspapers to disclose information that would lead to the identification of anonymous commenters on their blogs.

In criminal cases, the issues are similar, but the stakes can be higher for everyone involved. A refusal to turn over information in response to a grand jury subpoena can result in a contempt proceeding and a coercive jail term, as individuals as diverse as New York Times reporter Judith Miller and video blogger Josh Wolf have learned.

In one recent case, an Illinois court upheld the issuance of a grand jury subpoena seeking information on anonymous newspaper blog commenters who had, the court concluded, relevant information about the defendant in a murder case.

I Know Who You Are and What You Did

In 2008, Frank Price was arrested in Madison County, Ill., and charged with first degree murder for the death of a 5-year-old child, a development that was reported in the local newspaper, the Alton Telegraph. The article was posted on the newspaper’s website and drew the attention of a number of anonymous commenters, some of whom purported to have personal knowledge of Price as well as past incidents of his abuse against children. Detectives investigating the case contacted the newspaper informally, seeking to learn the identity of the anonymous commenters, but the newspaper refused and told the detectives that the information had to be requested formally.

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Alton Telegraph’s website

Shortly thereafter, the newspaper was served with a grand jury subpoena requesting records that would lead to the identity of five of the commenters, including full names, addresses and IP addresses. The newspaper filed a motion challenging the subpoena, arguing that the comments fell within the protection of the Illinois reporter’s shield law.

Journalist Shield Laws

As we noted in our prior blog post discussing the two rulings in civil cases, individual state journalist shield laws vary greatly in their provisions. The Montana Media Confidentiality Act is worded very broadly, and covers “any information obtained or prepared” by a news outlet. In Doty v. Molnar, the court focused on that language in concluding that anonymous comments were protected under that Act from disclosure in a civil suit.

The Oregon Media Shield Law protects “the source of any published or unpublished information obtained by the person in the course of gathering, receiving, or processing information for any medium of communication to the public.” In Beard v. Doe, the Oregon court ruled that anonymous comments fell within that language and were thereby protected from disclosure.

The Illinois reporter’s shield law, 735 Ill. Comp. Stat. 5/8-901., provides that a court may not compel “any person” to disclose the “source of any information obtained by a reporter” unless “all other available sources of information have been exhausted and…disclosure of the information sought is essential to the protection of the public interest involved.” A “source” is defined as “the person or means from or through which the news or information was obtained.”

The Alton Telegraph v. The People of Illinois

In the Alton Telegraph case, the newspaper argued in its brief that the Illinois reporter’s shield law protected the identity of the anonymous commenters because the commenters were both “persons” and “sources” within the meaning of the Illinois law.

The newspaper also argued that the subpoena should be quashed because the prosecutor had not shown that all other sources of information had been exhausted, and that the disclosure was essential to the protection of the public interest. The prosecutor argued that the commenters were not “sources” for the newspaper or its reporters because the comments were posted after the newspaper’s article on the topic was published, and the commenters were not “individuals who approved a reporter as an anonymous or confidential source.”

In its ruling, the court construed the statutory language narrowly, agreeing with the prosecutor that the commenters were not “sources” for a story that had already been written and published, and therefore the identity of the commenters fell outside the protection of the shield law. But the court did recognize the importance of newspaper commenters (whom the court refers to alternatively as “bloggers” and “commentators”) and their potential to serve as future leads for reporters, and suggested that arguments that they should be protected should be directed to the legislature:

While the bloggers were not used specifically to write this article, there is the possibility of the commentators becoming sources. It can be argued that the commentators are persons through which the information was obtained. However, the information is not necessarily obtained for the purpose of gathering the news. The commentary section provides readers with a platform for discussing the case at their leisure. Bloggers feel the comfort, and sometimes too much comfort, of freely conversing with the protections normally provided through the expected anonymity of the Internet. A lack of these protections and/or anonymity might well have a chilling effect on future bloggers.

On balance, the court concluded, that while the newspaper’s interest in protecting the identity of individuals who made unsolicited, public comments was “not negligible,” that interest did not “go far enough to serve the larger purpose of the reporter’s privilege, which is to allow ‘the public to receive complete, unfettered information.’” The court concluded that ordering the newspaper to reveal the commenters’ identities would not “make the public unwilling to express their opinions or to provide information during the course of a reporter’s actual investigation, in future cases, nor does it deny the public the right to receive complete unfettered information in this and future instances.”

The court ordered the newspaper to provide information on only two of the five specified individuals, however. As to those individuals, the court found that the state had met its burden to show that the information they sought was relevant, that the information could not be obtained by other means, and that the individuals had “relevant information about the defendant’s prior conduct, his propensities for violence, and the relationship with the child.”

Grand Jury Subpoenas and Gag Orders

The Alton Telegraph case is not the only recent instance of law enforcement seeking information from anonymous commenters. Unlike civil proceedings, grand jury proceedings are secret; thus these incidents may fly under the radar unless a party who is served with a subpoena chooses to publicize it or challenge it in court. But some grand jury subpoenas contain “gag order” provisions warning recipients that mere disclosure of the subpoena may obstruct law enforcement, thereby suggesting but not stating that the recipient of the subpoena might be prosecuted if the subpoena is disclosed.

Such a gag order provision was contained in a grand jury subpoena issued in 2008 by a prosecutor in the office of the Bronx District Attorney to the operators of the New York political blog Room 8. The subpoena sought the production of identifying information about a single commenter on the blog, and warned that disclosure of the subpoena “could impede the investigation being conducted and thereby interfere with law enforcement.” The subpoena and the included warning were subsequently withdrawn and the operators went public concerning the incident.

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An article posted on the website of the Las Vegas Review-Journal on May 26, 2009, concerning the federal prosecution of a Las Vegas businessman, drew over 100 comments. Thomas Mitchell, the editor of the paper, revealed in an editorial on June 7 that a short time later the newspaper received a federal grand jury subpoena seeking information about the anonymous commenters, including “full name, date of birth, physical address, gender, ZIP code, password prompts, security questions, telephone numbers and other identifiers [and] the IP address.” This subpoena also contained a warning: “You have no obligation of secrecy concerning this subpoena; however, any such disclosure could obstruct and impede an ongoing criminal investigation.”

In a story published by the Review-Journal on June 17, Mitchell stated that the newspaper had reached an agreement with prosecutors to limit the amount of information that the newspaper would be compelled to produce, narrowing it to only two user accounts. Prosecutors indicated that they sought the information out of concern for the safety of jurors hearing the underlying criminal case based on what they regarded as threatening statements in the comments. According to the story, the American Civil Liberties Union remained concerned about the chilling effect of the subpoena, however, and filed a motion to quash the subpoena.

Mitchell also pointed out something that seems to get lost in the shuffle in these controversies: The newspaper may not even have the identifying information that law enforcement is seeking. As Mitchell noted: “We don’t require registration. A person could use a fictitious name and email address, and most do. We have no addresses or phone numbers.”

This is probably the case for many newspaper websites, in which case server logs that record the IP addresses of website visitors might provide the best clue to a subscriber’s real identity. Resolving IP address information to yield a user’s real identity is possible, but it can be a complex process and would probably require additional subpoenas to Internet service providers.

The Las Vegas Review-Journal can’t fall back on a state shield law in this case, because the proceeding is in federal court. Currently, there is no federal journalist shield law, so newspapers seeking to challenge a grand jury subpoena must argue that the information requested by a prosecutor is protected under federal constitutional law principles. There is currently an ongoing move in Congress to adopt a federal journalist shield law.

Do Blog and Website Operators Protect Anonymity?

While some newspapers like the Alton Telegraph and the publications involved in the civil suits discussed above have taken legal action to protect the identity of anonymous commenters on their websites, not all media organizations do so. Typically, a site’s online terms of use, terms of service, privacy policy or similar document will address the issue by reserving the right to provide information on website users in response to legal process, with no promise that they will even notify a user whose information is sought by law enforcement.

As noted by the court in the Alton Telegraph case, the newspaper’s website required commenters to read and assent to a user agreement stating that comments submitted to the website “are not private,” and its privacy policy stated that the newspaper reserved the right to disclose user information “when the law requires it.” In The Alton Telegraph v. the People of Illinois, the law required it.

Jeffrey D. Neuburger is a partner in the New York office of Proskauer Rose LLP, and co-chair of the Technology, Media and Communications Practice Group. His practice focuses on technology and media-related business transactions and counseling of clients in the utilization of new media. He is an adjunct professor at Fordham University School of Law teaching E-Commerce Law and the co-author of two books, “Doing Business on the Internet” and “Emerging Technologies and the Law.” He also co-writes the New Media & Technology Law Blog.