• by Wendy Davis , Staff Writer @wendyndavis, October 19, 2007

Showdowns between newspapers and the courts have tended to be centered on whether reporters need to turn over notes or information about sources, but a battle now unfolding in Arizona is far broader. In that dispute, which resulted in the arrest last night of Phoenix New Times owners Michael Lacey and Jim Larkin, a grand jury subpoena was issued for information about the online readers of the paper.

"The authorities are also using the grand jury subpoenas in an attempt to research the identity, purchasing habits, and browsing proclivities of our online readership," they wrote in their article, "Breathtaking Abuse of the Constitution," which was published yesterday.

After the piece appeared, Lacey and Larkin were both arrested for writing about the subpoena, on the theory that publishing an article violated the secrecy of grand jury proceedings. The grand jury is investigating the newspaper's earlier decision to publish the home address of Joe "America's Toughest Sheriff" Arpaio -- an act that might constitute a crime in Arizona.

Leaving aside the underlying issues -- whether publishing either a home address or the fact that you've been subpoenaed is a crime, or whether both are protected by freedom of speech principles -- it's clearly not a good sign for the First Amendment when law enforcement authorities think they're entitled to know information about people who visit a newspaper's Web site.

What's more, it's one more example of the unintended results that can come from collecting information for marketing purposes. While publishers might have good reasons for wanting to compile detailed profiles of online readers, Web users also need to be able visit newspaper Web sites without worrying that their identities will be disclosed.

Here, it's not clear whether the Arizona courts would have demanded that the newspaper comply with the subpoena; nor is it clear whether the newspaper even has the information that was requested. But if the courts and/or publishers don't take steps to protect readers' privacy in this kind of situation, it's not far-fetched to conclude that Web visitors will decide to take matters into their own hands -- by deleting cookies, using anonymizers to browse the Web or simply providing false information