Bloggers Win Privacy Battle With Bronx DA

Room Eight, a blog about NYC politics co-founded by popular Politico.com columnist Ben Smith, has been quietly fighting a subpoena from Bronx District Attorney Robert Johnson's office. The subpoena demanded to know the identity of the Room Eight anonymous blogger "Republican Dissident" who had criticized Johnson's office.

The subpoena carried a warning in capital letters that disclosing its very existence “could impede the investigation being conducted and thereby interfere with law enforcement” — implying that if the bloggers blabbed, they could be prosecuted.

“We were totally perplexed,” said Ben Smith, who co-founded Room 8 with Gur Tsabar. (The site calls itself an “imaginary neighbor” to the press room — Room 9 — in City Hall in New York.) The two promptly began looking for a lawyer. “We knew enough to be scared.”

This, of course, is a blogger’s nightmare: enforced silence and the prospect of jail time. The district attorney eventually withdrew the subpoena and lifted the gag requirement after the bloggers threatened to sue. But the fact that the tactic was used at all raised alarm bells for some free speech advocates.

The demand for secrecy raised the unnerving prospect that prosecutors could quietly investigate anyone who posts comments online, while the person making those comments is unaware of and unable to respond to the risk. The tactic also robs bloggers of one of their most powerful weapons: the chance to spread the word and turn the legal attack into an online cause célèbre.

Ben Smith called the Bronx DA's office to ask why they wanted the information, but prosecutors refused to say. District Attorney Johnson claimed to have no knowledge of the subpoena, which also demanded the IP addresses of several anonymous commenters on Room Eight. After Smith engaged the pro-bono assistance of privacy advocacy lawyers, Johnson reviewed the subpoena and judged it "unnecessary."

Once the subpoena was withdrawn, Smith was free to discuss the situation and it has know blown up into quite the hot topic, with many bloggers calling on New York State Attorney General Andrew Cuomo to investigate Johnson's office.

As the Times notes, there are ways to shield your IP address, but this case certainly raises questions about how many other gag-order type subpoenas have been used by the government to find the identities of our anonymous "dissidents".