In August, Phoenix New Times received a subpoena for its web server logs. The overly-broad grand jury subpoena demanded access to the complete server logs, explicitly including all information about every user of the site since January 2004.
Special prosecutor Dennis Wilenchik used the grand jury to subpoena “all documents related to articles and other content published by Phoenix New Times newspaper in print and on the Phoenix New Times website, regarding Sheriff Joe Arpaio from January 1, 2004 to the present.” Wilenchik also attempted to set up a meeting with the judge overseeing the grand jury, but excluding Phoenix New Times lawyers. A move the judge called “absolutely inappropriate” in an October 11 hearing.
Apparently two things set off Arpaio’s witch hunt through Wilenchik: the publication of the sheriff’s home address at the bottom of an opinion column on the website and investigations into “commercial property investments the sheriff hid from public view.”
The subpoena is especially chilling for internet users:
“All internet web site information for the Phoenix New Times internet site related to the web pages ... [four specific articles on the sheriff]. The information should include, but not be limited to: The Internet Protocol addresses of any and all visitors to each page of ... [four specific articles on the sheriff]....”
“Any and all documents containing a compilation of aggregate information about the Phoenix New Times Web site created or prepared from January 1, 2004 to the present, including but not limited to :
“A) which pages visitors access or visit on the Phoenix New Times website;
“B) the total number of visitors to the Phoenix New Times website;
“C) information obtained from ‘cookies,’ including, but not limited to, authentication, tracking, and maintaining specific information about users (site preferences, contents of electronic shopping carts, etc.);
“D) the Internet Protocol address of anyone that accesses the Phoenix New Times website from January 1, 2004 to the present;
“E) the domain name of anyone that has accessed the Phoenix New Times website from January 1, 2004 to the present;
“F) the website a user visited prior to coming to the Phoenix New Times website;
“G) the date and time of a visit by a user to the Phoenix New Times website;
“H) the type of browser used by each visitor (Internet Explorer, Mozilla, Netscape Navigator, Firefox, etc.) to the Phoenix New Times website; and
“I) the type of operating system used by each visitor to the Phoenix New Times website.”
Attorneys for Phoenix New Times moved to quash the subpoena as overly broad, make the secret subpoena public information, and have special prosecutor Wilenchik removed from the case. Phoenix New Times, for its part, published the details of the subpoena.
Two of the publication’s owners were subsequently arrested for divulging details of the secret grand jury subpoena.
Within 24 hours of the arrests, the case against the publication fell apart a few days later as public outrage grew. Maricopa County Attorney Andrew Thomas dismissed all charges hours after the state bar association confirmed that it had begun an internal investigation into Thomas and Wilenchik.
Thomas claimed he had “no prior knowledge of the arrests or the demands set forth in the subpoena that his office sought” as he fired Wilenchik.
The lesson? Regardless of any privacy policy website operators may have, any information collected about users can be demanded by a court, through public subpoena or secret action in the dark of night.
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