By Amy Silverman
By Olivia LaVecchia
By Monica Alonzo and Stephen Lemons
By Chris Parker
By Michael Lacey
By Weston Phippen
Freedom of the press must go hand in hand with our right to privacy, which, while not mentioned specifically in the Constitution, has been upheld numerous times in the Supreme Court, in cases ranging from access to information on contraceptives to child-rearing. "Any right doesn't exist if the incursion on that right goes unchallenged," says Bob Corn-Revere, a First Amendment attorney in Washington. Not only should New Times be allowed to write anything it wants, you should be allowed to read it, and other people should not have the right to know what you are reading.
"A fair reading of the Fourth Amendment should protect against these unreasonable searches and seizures," says David Bodney, a First Amendment lawyer and former New Times staffer. "Any attempt by the government to reveal the reading habits of an individual is tantamount to compelling a person to testify about the same thing."
The problem in the digital age is that we are not the only ones who know you have come to our Web site and read our articles. If you were to go on Google and do a search for "Arpaio New Times," Google will know your IP address and will know if you clicked on the link to a specific story about Arpaio written by New Times. Even if newspaper Web sites don't give up that information, that would not stop intermediaries, such as Google or Yahoo, from giving up that information. And few companies holding this information are run by owners willing to go to jail to protect your rights.
Or the government could subpoena all searches, but let search engines keep the IP addresses that would identify your computer. Sounds okay, right? But by using some deduction, authorities could match up identities to a specific set of searches. How many times have you Googled you own name? Match that up with the load of search terms you have used over the past month, from looking for restaurants near your house, to searches related to work, and a detective could get a pretty good idea of who you are, and what you have read online. Last year, AOL released search logs of 650,000 anonymous users. It wasn't long before bloggers and journalists were able to connect the dots and identify users based on their search sets, including searcher 4417749, whom the New York Times pegged as Thelma Arnold, a 62-year-old Georgia woman who, we all now know, has a dog that "urinates on everything" and is interested in "60 single men," thanks to knowing her search results.
Google is thumping its chest over its recent decision to "anonymize our server logs (which include IP address, search query, time and date) after an 18-month period by, among other things, removing a portion of the IP address associated with each log entry," according to a Google spokesperson.
That's good, but it still leaves your IP address on Google for 18 months.
And what about e-mail? If a whistleblower at a government agency were to send a media organization a tip, he probably wouldn't do it with his work e-mail, instead choosing the anonymity of a Gmail or Yahoo account. But Google keeps copies of Gmail messages on its servers for 60 days, even after you've deleted them and emptied the trash from your account.
So, if a court had an inkling that someone sent information to a newspaper, they could bypass subpoenaing both the individual and the newspaper, and go to the third-party source like Google, which would then decide whether to give up the information. Google fought an excessive Department of Justice subpoena last year, but it doesn't mean they are willing to fight the good fight each and every time.
"In order to protect the privacy of the parties involved," a Google representative tells New Times, "we don't comment publicly on the nature or quantity of subpoenas we receive or the specifics of whether and how we comply with such requests."
Not very reassuring, is it?
"People need to recognize the use of e-mail as a potentially dangerous way of communicating," lawyer David Bodney says. "[Internet service providers] and third parties should rigorously protect information, including the reading habits of users. [But] it's almost impossible for third parties [like ISPs and search engines] to guarantee that your information will not fall into the hands of someone you do not want it to."
Sending a handwritten letter is, by far, safer than sending an e-mail, in terms of privacy. "We as a society should guarantee e-mail users the same protections we give to the post," Bodney says. "It's a crime to open someone else's mail, and it should be the same with e-mail. This is a great example of the law lagging light years behind technology."
Says New Times' First Amendment lawyer, Steve Suskin, "Just because the founding fathers didn't have computers doesn't mean they wouldn't be appalled by the government abusing the First Amendment rights to free speech, and our right to privacy."