December 31, 2009

BACKDOWN? TSA drops subpoenas issued to bloggers who published security directive.

Well, it was getting a lot of bad publicity. And, as I’ve suggested before, bullying bloggers is a bad bet. But, from the comments at BoingBoing, “As a forensic computer examiner, I’m now wondering what they did with the forensic images that they made of these guy’s computers.”

Meanwhile, all bloggers should get one of these! That said, I’m a bit torn. I don’t believe in “shield laws” that would let journalists avoid subpoenas or testimony because of their profession; if such should exist, they should include bloggers but I’d rather they didn’t. This, however, looked more like bullying than a legitimate inquiry. It will backfire, of course, as bloggers will no doubt pay more attention to the TSA’s doings as a result. Maybe that’s punishment enough . . . .

UPDATE: From the comments at BoingBoing:

Speaking as an attorney, I would advise you not to let this go. Make an ethics complaint against the government attorney that signed the subpoena in DC or the jurisdiction they are licensed to practice law in. You don’t subpoena someone, then just “let it drop.”

They will be forced to: (1) admit there was no basis for the subpoena, in the first place, (2) make a dubious “national security” claim as to why they can’t discuss, which will dog them for their entire career, or (3) admit that they made a forensic scan of a citizen’s computer and used the evidence to pursue a whistleblower, after having used a subpoena to strongarm a citizen (again, something that will arise again ten years later during his Senate confirmation hearing for another position).

Long story short, government drones who use their subpoena power to bully citizens blowing the whistle on government incompetence deserve to be held to account. Do not back down, an ethics complaint is very low cost, and very high reward.

In general, ethics complaints are a good response to legal bullying. Much of what lawyers do in their bully capacity is questionable under the ethics rules — one of my colleagues who teaches legal ethics was commenting to me a while back that he was surprised how seldom people file complaints on unethical behavior in IP cases — and though bar ethics committees are often less than diligent, dealing with this stuff is a hassle.