[privacy] Breathtaking Abuse of the Constitution

["Richard M. Smith" <rms () computerbytesman com>]

http://www.phoenixnewtimes.com/2007-10-18/news/breathtaking-abuse-of-the-con
stitution/

Breathtaking Abuse of the Constitution
Joe Arpaio, Andy Thomas and Dennis Wilenchik hit New Times with grand jury
subpoenas
By Michael Lacey  and  Jim Larkin 
Published: October 18, 2007
 
This newspaper and its editorial staff - both current and former - are the
targets of unprecedented grand jury subpoenas dated August 24. 

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. 

It is, we fear, the authorities' belief that what you are about to read here
is against the law to publish. But there are moments when civil disobedience
is merely the last option. We pray that our judgment is free of arrogance. 

These are the issues as we understand them. 

In a breathtaking abuse of the United States Constitution, Sheriff Joe
Arpaio, Maricopa County Attorney Andrew Thomas, and their increasingly
unhinged cat's paw, 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." 

Every note, tape, and record from every story written about Sheriff Arpaio
by every reporter over a period of years. 

In addition to the omnibus subpoena, which referred to our writer Stephen
Lemons directly, reporters John Dougherty and Paul Rubin were targeted with
individual subpoenas. 

More alarming still, Arpaio, Thomas, and Wilenchik subpoenaed detailed
information on anyone who has looked at the New Times Web site since 2004. 

Every individual who looked at any story, review, listing, classified, or
retail ad over a period of years. 

The seemingly picayune matter of Sheriff Arpaio's home address getting
printed at the bottom of an opinion column on our Internet site - and the
very real issue of commercial property investments the sheriff hid from
public view - have now erupted into a courtroom donnybrook against a
backdrop of illegal immigration disputes, Mexican drug cartels, the
Minutemen, political ambition, and turf disputes between prosecutors and the
judiciary. 

And given the diva-like drama that Arpaio attaches to even the mundane, you
can add to the grand jury tension the paranoia of a Keystone Kops
assassination "plot" against "America's toughest sheriff." 

Behind these operatic and public developments, an ethical stain has spread
over the secret proceedings of the grand jury. 

Special prosecutor Wilenchik has sabotaged the integrity of the
investigation. 

Not content with using the hidden power of sweeping grand jury subpoenas,
the government's lawyer attempted to get the ear of the sitting judge - out
of earshot of New Times' attorneys. 

Special prosecutor Wilenchik used a politically potent emissary in a
behind-the-curtain attempt to set up a meeting between the judge overseeing
the grand jury and Wilenchik. 

In a hastily called hearing October 11, the judge labeled Wilenchik's
attempt to set up an ex parte discussion "absolutely inappropriate." 

In our humble opinion, Wilenchik's clumsy intervention behind the scenes
with the judge was well beyond "inappropriate." Wilenchik's behavior raised
the issue of an attempt to rig a grand jury already veiled in official
secrecy. 

In our deliberations, we faced the obvious: A grand jury investigation is a
fearsome thing; a tainted grand jury is a tipping point. 

We intend now to break the silence and resist. 

This is hardly the first time - even if the scope here is breathtaking -
that law enforcement attempted to use a grand jury to get at the
confidential records of reporters or editors. But the contemptuousness of
this troika of ambitious politicos is reflected in their attempt to target
the readers of New Times. 

In a grandiose insult to the Constitution, Arpaio, Thomas, and Wilenchik
used the grand jury to subpoena the online profiles of anyone who viewed
four specific articles on the sheriff. 

The pertinent section of the secret grand jury subpoena reads, in part: "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]. . ." 

Energized, perhaps, by this mugging of Constitutional safeguards, Arpaio,
Thomas, and Wilenchik then shot the moon. The grand jury subpoena also
demands Web site profiles of anyone and everyone who visited New Times
online over the past two and a half years, not merely readers who viewed
articles on the sheriff. 

The subpoena demands: "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." 




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