WHEN BIKEPORTLAND.ORG Editor Jonathan Maus got a call from his wife in early October, telling him there was someone from the courthouse on the doorstep of their family home, his first thought was to wonder which story he might have messed up, he says.
"Then she told me this man was on his way over here to the office, and sure enough, he turned up, and handed me this piece of paper," says Maus, who covers local bike issues from every angle.
As it turns out, Maus had done nothing wrong. The document was a court order from Deputy District Attorney Ryan Lufkin, signed by Multnomah County Judge Cheryl Albrecht, ordering Maus to provide the IP address of one of his commenters. The commenter, "Cam," was an alleged witness to the Tasering of a bicyclist by a police officer this past summer ["Night Light Fight, News, June 19].
According to the order, Maus had five days to give the info to the DA's office. Furthermore, the order said Maus could not inform the commenter, "or any others" outside his business, about the order.
"I was a little shocked at the tone," Maus says. "It didn't really offer any context for why it was seeking the information, it just said give us the information within five days, and don't tell anybody about it."
Maus took a risk on telling somebody outside his business about the order, and consulted a friend of his, lawyer Jim Coon, of Swanson, Thomas, and Coon. Coon said he thought Maus was protected from having to give out a commenter's IP address under Oregon's media shield law, which protects the URL, email address, and other unpublished identifying information of commenters on websites like BikePortland.org.
Indeed, attorneys for the Mercury and Willamette Week went to court over the right to withhold a commenter's IP address under the shield law—and won, in an October 1 ruling in Clackamas County ["The Portland Mercury: We'll Go to Court for You," Blogtown, Oct 1]. Yet the court order against Maus was dated October 10.
Nonetheless, disturbed at the potential consequences of the order, Maus elected not to go public with it. Instead, he contacted Deputy DA Lufkin, telling him he was not legally required to give up the commenter's IP address, but that he would contact the commenter to see if they would agree to share the information, out of his willingness to help.
Lufkin responded, asking why Maus believed he did not need to comply with the court order, and noted that he had five days to do so. Maus eventually heard back from the commenter, who voluntarily provided contact details to Lufkin, through Maus, on October 29. Lufkin thanked Maus for providing the information, adding "that this is still a protected matter not to be discussed until the court lifts that provision."
Maus is troubled by the order, and wants other bloggers to know about his experience, so they'll know what to do in the future if a guy with a court order shows up on their doorstep.
"It didn't sit very well with me—the way they said I couldn't talk about it," he says. "It just felt like it was unnecessary, I felt I couldn't even seek legal help, or tell my spouse, let alone tell the commenter. It felt kind of creepy."
"These kinds of orders are likely to chill expression," says Coon. "People are less likely to post things frankly on a website if they think a court order could come in and force a blog owner to divulge their identity."
Lufkin explains what happened on his end: "We submitted an affidavit and motion requesting protection for a limited duration," he says. "A judge signed our request, which has since expired. As for further details, it's an ongoing prosecution and we are not at liberty to discuss it."
Judge Albrecht, too, explained her involvement. "The order I signed was based on a previous order by another judge finding good cause for production of the information requested as well as good cause for limitations on disclosure of the request and the information itself," she wrote in an email to the Mercury. "The underlying affidavit and motion are subject to a protective order, and as such, I am not at liberty to comment further."
Albrecht also noted that the Mercury has "identified an issue at the heart of the intersection between important policies to protect cyber privacy and the legitimate needs of government to fulfill its duties to citizens."