Independent Media Collective Defeats 'Unconstitutional Antics' Of San Francisco Police

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An independent media collective stopped the San Francisco Police Department from forcing the online news outlet to reveal data associated with an article published by an anonymous author.

On January 24, Judge Linda Colfax of the Superior Court of San Francisco County approved a search warrant sought against the SF Bay Area Independent Media Center. She also granted police a 90-day gag order to prevent Indybay from writing or speaking about the warrant. 

The San Francisco Police Department informed Indybay on January 31 that they would no longer execute the search warrant. But police maintained the unconstitutional gag order.

With legal support from the Electronic Frontier Foundation (EFF), Indybay urged the judge to lift the gag order and revoke the search warrant that the court had approved because it violated California’s reporter shield law, the federal Privacy Protection Act, and the First Amendment.

“Indybay’s experience highlights a worrying police tactic of demanding unpublished source material from journalists, in violation of clearly established shield laws," Mario Trujillo and David Greene wrote for EFF. “Warrants like the one issued by the police invade press autonomy, chill news gathering, and discourage sources from contributing.”

“While this is a victory, Indybay was still gagged from speaking about the warrant, and it would have had to pay thousands of dollars in legal fees to fight the warrant without pro bono counsel. Other small news organization might not be so lucky,” Trujillo and Greene added.

As recounted by Indybay, on January 18, a “pseudonymous communiqué” by "some anarchists" was published on the Indybay newswire. It claimed credit for 18 windows that were smashed “at the San Francisco Police Credit Union that night” and was only 54 words long.

In the early hours of January 18, one year after the police murder of Tortuguita, we smashed 18 windows at the San Francisco Police Credit Union as an act of vengeance for it. We also honor the memories of Klee Benally, Sekou Odinga, and Banko Brown. Fight for the dead, fight for the living!

Tortuguita, or Manuel Esteban Paez Terán, was a forest defender who was part of the struggle to stop the construction of a “Cop City” compound in Atlanta. He was shot and killed by Georgia state troopers.

Indybay’s newswire, according to the motion to quash [PDF], functions as a way for the collective to receive “letters to the editor” or news tips that provide “source material for Indybay editors.” Once published, an Indybay editor has the ability to “combine, classify, promote, copyedit, or hide” the posts.

“An Indybay editor reviewed [the 54-word article] and classified it as local news, finding it newsworthy as apparent first-person source material.” However, Indybay insists that they have no idea who authored the article.

In 2010, an Indybay editor succeeded in having a warrant quashed after police at the University of California sought unpublished photographs from their digital camera.  

During the media collective’s “nearly 24-year history,” Indybay noted that it had “resisted numerous warrants and other police inquiries seeking identifying information of contributors.”

“Not once has Indybay revealed such information when requested,” Indybay declared. "User privacy is of the utmost importance, and technical precautions are in place, such as allowing anonymous posting, not requiring logins, and not typically recording the IP addresses from which people visit and post to the site.”

Indybay continued, “Readers and contributors can further protect themselves by using privacy-enhancing tools such as Tor Browser and Tails operating system.”

Seth Stern, advocacy director for the Freedom of the Press Foundation, told The Dissenter, “We've seen a significant rise in cases where authorities disregard the law to search, raid, indict, gag and otherwise violate the well-established legal and constitutional rights of journalists.”

“Law enforcement efforts to seize journalists’ files have made national headlines in the cases of the Marion County Record in Kansas and Tim Burke in Florida," Stern said. “It’s hard not to wonder whether authorities in San Francisco were trying to avoid similar backlash when they sought their unconstitutional gag order.”

The request for a search warrant [PDF] by Sergeant Michael Canning made no mention of the fact that Indybay was an online media outlet and that it was protected by California’s shield law—even though Indybay had successfully defended its status as a news organization in the past.

According to the motion to quash, police sought the “IP address of the author; other personal identifying information of the author including username, email address, and phone number; messages sent to Indybay’s email list related to the article; and other data.”

But EFF made it clear to the judge, as well as police, that there was no reason to suspect Indybay, a news publisher, had any involvement in the property damage that was under investigation.

It was also emphasized in the motion to quash that protections for newsgathering “apply to evolving forms of journalism and electronic source material.”

“Indybay provides a unique online space for community-produced news in the Bay Area while also exercising editorial judgment familiar to traditional newspapers.” If the electronic data sought by police was shared, it could reveal “unpublished source material” just as easily as a “reporter’s notebook.” 

Stern maintained, “Cops, prosecutors, and judges should know that the Privacy Protection Act bars searches and seizures of journalists' unpublished materials and that the First Amendment bars prior restraints gagging journalists.”

“And when authorities gag the press from talking about their unconstitutional antics, and then drop them when they're called out, it's a good indicator that they do know—they’re just hoping not to get caught,” Stern concluded.