Grand Jury Subpoenas Commenters' Personal Information From Newspaper

Terry Gilliam's When a Las Vegas newspaper ran an article about the upcoming tax evasion trial of local resident Robert Kahre, the piece drew dozens of comments from apparent sympathizers.

"IRS forcing a Federal Income Tax on a man's wages is illegal," wrote one.

"I have not filed in over 30 years," another boasted.

A third suggested that people should "organize protests at the courthouse."

Now, a federal grand jury has subpoenaed the names, phone numbers, IP addresses and other identifying information about every person who commented on the original article, which appeared in the May 26 edition of the Las Vegas Review-Journal. News of the subpoena was first reported last week by one of the paper's columnists, Thomas Mitchell.

"There was no indication what they were looking for or what crime, if any, was being investigated, just a blanket subpoena for voluminous and detailed records on every private citizen who dared to speak about a federal tax case," Mitchell wrote.

Mitchell said in his column that the newspaper's lawyers are negotiating with the U.S. Attorney's Office. He also said the paper doesn't collect much of the data that the authorities requested.

Executives from the paper did not respond to Online Media Daily's requests for comment. The U.S. Attorney's Office in Nevada declined to comment.

It's not clear yet whether the matter will end up in court, but some legal experts say that the newspaper could mount a strong argument that the subpoena violates the people's free speech rights because it's too broad.

Although there's no specific federal shield law allowing newspapers to protect their sources' identities, some courts have held that sweeping subpoenas can violate people's free speech rights. That's because attempts to unmask readers/commenters could intimidate others from reading newspapers or expressing opinions in the future.

"There's good Ninth Circuit precedent for raising First Amendment objections to subpoenas," says Paul Alan Levy, a lawyer with digital rights group Public Citizen. The subpoena to the Las Vegas Review-Journal seems particularly broad, Levy says. "It strikes one as outrageous. Prosecutors ought to know better," he adds.

Thomas Burke, a lawyer with Davis Wright Tremaine, adds that identifying the commenters doesn't seem likely to yield information that could be used to prosecute a crime.

While at least one commenter admitted to not paying taxes in 30 years, there's no proof that's true and not just a rhetorical device. "There's often a crowd mentality in those blogging posts," Burke says. "If it's come to trolling for anti-tax protesters on the Web, we should seriously question how the government is spending its money."

Other federal courts have limited the government's ability to issue expansive subpoenas to newspapers, bookstores, and other enterprises. In one recent case, a judge in Wisconsin rejected the federal government's attempt to force Amazon to reveal the names of 120 purchasers of books sold by Robert D'Angelo, who was under investigation for tax evasion and wire fraud.

The court ruled that Amazon had "a legitimate concern that honoring the instant subpoena would chill online purchases by Amazon customers." In that case, a judge ordered Amazon to notify some purchasers about the request and ask if they wanted to voluntarily speak with government officials.

2 comments about "Grand Jury Subpoenas Commenters' Personal Information From Newspaper".
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  1. Andy Benkert from, June 15, 2009 at 6:38 p.m.

    I find it funny that there is only one other comment other than mine. Seems the subpoena has already had an effect!

  2. James Culp from Franklin Pierce Law Center, June 18, 2009 at 7:28 a.m.

    It looks like the feds are following the lead of companies that sue to shut up online anonymous critics. The prosecutors will soon learn there's a long list of state court decisions striking down these types of subpoenas unless the prosecutors can essentially prove, before trial, these website commentators have more than likely broken tax laws; on the up side, if it does go to court, at least there will be some federal case law to use in defending against future IP address dragnets like this one. I'm pretty sure this one falls under the long honored legal term "fishing expedition."

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