Libertarian Magazine 'Reason' Target Of Federal Subpoena

Reason, the popular libertarian magazine, has been touched by the long arm of the law. The Department of Justice wants Reason to turn over information on the identities of six users who posted certain comments online.

Reason has since deleted the comments from its site but is declining to say whether it will comply with the federal order.

Specifically, the DOJ subpoena is aimed at comments made against the federal judge in the Silk Road case. Earlier this year, Ross Ulbricht was convicted of running an online drug trafficking site with that name. In May, Judge Katherine Forrest doled out the maximum sentence: life in prison. It was stiffer than the prosecution had requested.

In an online post dated May 31, Reason shared Ulbricht's pre-sentencing letter to the judge, in which he took responsibility for creating the site and described his motivation as "very naive."

Reason users had different, angrier words for Forrest. In the comments thread, for example, user "Agammamon" wrote: "its judges like these that should be taken out back and shot." User "Cloudbuster" said: "Shoot them out front, on the steps of the courthouse."

A blog called Popehat.com obtained and posted the subpoena, in which federal prosecutors ask for "any and all identifying information" for the users, including subscriber accounts, credit card information, associated email addresses, and the unique IP address of each post.

Reason declined to comment for this post, as advised by its legal counsel.

This move by the DOJ raises two timely questions:

1. Are the comments "true threats"?

Prosecutors say they're investigating potential violations of a federal law against interstate threats, 18 USC Section 875. The Supreme Court recently dealt with that same statute, in the case of Elonis v. United States. The justices reversed the conviction of a Pennsylvania man who claimed violent messages he posted on Facebook were therapeutic, not true threats in which he intended to cause harm.

The narrow ruling didn't speak to issues like whether "true threats" covers only statements intended to cause fear or may also include statements that any reasonable person would take seriously.

2. On a news site, do commenters count as sources?

Social networks like Facebook or Twitter comply with subpoenas from the federal government, as in the case of Occupy protester Malcolm Harris. But Reason is not Twitter. Reason is a journalism outlet protected under the First Amendment.

In 2014, the DOJ issued new rules in which it said it would use subpoena powers to obtain information or records from news media in limited cases, "as extraordinary measures, not standard investigatory practices."

Is a Web troll who posts a comment online, under a pseudonym, more like an anonymous source a journalist has promised to protect — or more like the customer of a social network?

Back in 2008, authorities subpoenaed the Las Vegas Review-Journal to hand over the identities behind more than 100 comments discussing a tax-evasion trial. The paper pushed back, and ultimately handed over data on just two commenters, the Reporters Committee For Freedom of the Press recounts.