Opinion: Arizona lawmen subpoena readers’ data
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A tiff between an Arizona sheriff and a Phoenix newsweekly escalated this week when the weekly, New Times, published a grand jury subpoena and the sheriff, Joe Arpaio of Maricopa County, had the owners arrested for it. Unlike the usual battle between lawmen and the press, though, this one involves more than just the public’s right to know. Instead, it also affects the public’s right not to be known.
The subpoena is jaw-dropping in its reach and intrusiveness. Among many other things, it demands the Internet addresses of every person who visited the New Times website since Jan. 1, 2004; the names of the websites that readers visited before they went to the New Times site; what operating system and browser they used; and all the information about readers obtained through New Times’ cookies, including what their site preferences were and what they had in their shopping carts. It’s not unusual for prosecutors to lead grand juries on fishing expeditions, but it’s hard to imagine what suspects or criminal activity would be surfaced by these inquiries. The information might be useful in a lawsuit against New Times, but that isn’t the purview of a county grand jury.
The ostensible reason for the grand jury’s interest in New Times is its alleged violation of an Arizona law that prohibits publishing personal information about a law-enforcement or court official online if it would pose ‘an imminent and serious threat’ to safety. New Times’ co-owner Michael Lacey freely admits to publishing Arpaio’s home address online (and, several times, in print -- including once on the weekly’s cover), but says the paper did so as part of a story accusing Arpaio of hiding information about other properties he’d purchased. The subpoena demands a raft of information from New Times about that story, plus three others and the cover illustration with Arpaio’s address. But it was the subpoena’s demands for information about readers, Lacey and fellow owner Jim Larkin wrote in a story published Thursday, that prompted them to reveal its contents -- even though state law forbids such disclosures. Lacey and Larkin were arrested Thursday night and released on bail a few hours later.
The prosecutor in the case is an attorney in private practice, Dennis Wilenchik, who has been the point man for Arpaio and County Attorney Andrew Thomas on several controversial cases. He’s currently under investigation by the state bar association, a probe that started when he attempted to have a Superior Court judge removed from all cases brought by the county attorney’s office. So in a sense, the battle between Arpaio and New Times is a sideshow to the main event, which deals more with Thomas and Arpaio’s efforts against illegal immigrants.
The subpoena and the arrests have ignited a furor that has little to do with the violation of grand-jury secrecy or the publication of the sheriff’s home address. And Wilenchik might have avoided the glare had he sought records related only to New Times’ compliance with law against personal disclosures online (although the law itself isn’t a model of constitutionality). Instead, he’s managed to unite both sides of the political spectrum against the inquiry. Witness the outrage voiced by conservative Clint Bolick, the director of the Goldwater Institute’s Center for Constitutional Litigation, on the liberal alternative weekly’s behalf. Whether that turmoil actually takes a political toll on Arpaio, however, is a whole ‘nother question. His reputation for tough enforcement, particularly against illegal immigrants, has made him extremely popular in Arizona, and he’s been re-elected three times since he won the post in 1992.