Doing Something, Not Just Talking About It!

Instead of being integrated into and accountable to the communities in which they operate, police forces are assuming many of the characteristics of an occupational army. A lot of people all over the political spectrum have grumbled about the dramatic change, but like the weather, nobody has done anything about it. Except Bill Sheehan.

When it comes to public facts, some animals are more equal than others

It’s now 2001, not 1961; this isn’t Mayberry, R.F.D., and relatively few people remember that even Officer Barney Fife got respect when he said “Come along, now.” Patrolling the streets now are police who have been trained in paramilitary tactics and carry weapons provided by the Department of Defense. Rather than being an integrated part of the community, law enforcement has migrated to the model of military “peacekeeping” seen in Serbia. Instead of being integrated into and accountable to the communities in which they operate, police forces are assuming many of the characteristics of an occupational army.

A lot of people all over the political spectrum have grumbled about the dramatic change, but like the weather, nobody has done anything about it. Except Bill Sheehan. Sheehan, a network engineer and libertarian who resides in a suburb of Seattle, sought the names, title, and salaries of law enforcement personnel at a number of Seattle-area agencies under the state of Washington’s Open Records Act, and has republished the information on the web. Sheehan cross-matched the data he obtained to publicly available records to obtain the home addresses and social security numbers. To find addresses, he used common internet search engines such as Yahoo people search. Social Security numbers were obtained from one of the many services that freely sell such information for as little as a buck. Sheehan also linked an embarrassing number of officers to their bankruptcy and criminal records.

It’s all legally public available information. So why is Sheehan being sued multiple times to take down his web site? Simple: those filing the lawsuits believe that public information should be treated as private when it comes to law enforcement. In their lawsuit against Sheehan, the city of Kirkland, Washington, maintained that listing social security numbers, home phone numbers and addresses would lead to harassment of officers and identity theft. Elena Garella, Sheehan’s attorney, pointedly remarked that “anyone who tries to steal the identity of a police officer would have to be incredibly stupid.”

Sheehan’s effort to increase police accountability through publishing the names of law enforcement personnel started 18 months ago when he learned how to use Open Records Act requests. In April and May, 2000, he filed requests with a number of cities in King County, and with the King County sheriff’s department, asking for public information. All of the cities except Pacific initially provided the requested information, but the King County Sheriff’s Office and the King County Jail refused. The Act requires that a public agency release such information within 5 working days. The city of Pacific claims that they are waiting for a decision in the King County case.

King County did respond by filing suit against Sheehan on May 13, 2000, although they did not serve him until the following July. The case was heard by King County Court Judge Michael J. Fox in November of last year. Fox ordered the county to turn over the last names of the officers. King County refused, and has appealed the decision. That appeal is pending. However, King County has seriously hurt their case by failing to file for a stay in time. Should King County lose the appeal, the county can be held liable for $100/day penalty for withholding the information. “For all intents and purposes,” Sheehan says, “it means that they are in contempt of court.”

An early Fourth of July

But the real fireworks show started on March 17, 2001, when Sheehan went live with his web site. Almost instantly, Justicefiles was hit by a barrage of hacking attempts and denial of service attacks. Sheehan and his partner, Aaron Rosenstein, both experienced network engineers, easily managed to keep the attacks from overwhelming their server. It was somewhat harder to defeat the pressure on their ISP, who received many calls from people asking that the site be taken down. The ISP did stand by justicefiles, however Sheehan is looking for another provider who can handle higher traffic loads. The site did temporarily go down when the domain registrar, DomainDiscover, caved in to pressure and unregistered his sites. Sheehan immediately reregistered the sites with domainbank.com and the site was back up within a day.

Some denial of service attacks were traced to the King County computer system. Evidence of the attacks was turned over to the FBI, which appears to be actively pursuing the case.

Both Sheehan and his attorney, Elena Garella, had their personal information revealed on web sites. Garella is rather sanguine about it; she realized that the information revealed was rather public anyway, and isn’t terribly bothered. Sheehan is not quite so relaxed, and with better reason: Someone in the Department of Corrections called up the Washington Department of Employment Security and got what is legally private information about Sheehan’s employment. (There is now an investigation by the FBI under way to identify the DOC employee who released private information.) Sheehan’s employer of over three years was approached and pressured to terminate Sheehan from his job — one in which his performance reviews came up highly positive. As far as the anti-Bill Sheehan web site goes, he has managed to get them kicked off of the free webservers that they use, because the publishing of illegally obtained private information violates the servers’ Acceptable Use Policies (AUPs). Sheehan says that he would not object to legally-obtained public information; he considers posting that to be fair game.

It didn’t take long for a number of police departments to respond to the web site. On March 19, King County filed for a probation violation hearing against Sheehan, who had been convicted of growing marijuana in 1991 and for receiving stolen property in exchange for pot. (Sheehan notes that his customer had purchased the computers from a third party and had written a bad check to pay for those computers; that made Sheehan responsible for restitution to the original seller.) The Bellevue police department handed out Sheehan’s photograph to their rank and file. In a statement to one of the local newspapers, Bellevue police spokeswoman Marcia Harnden threatened: “If one of us gets hurt over it, he should be very, very afraid because we will use every means at our disposal to hold him responsible for it.”

The First Amendment Argument

But both the ACLU and the courts have a different view of Sheehan’s exercise of free speech. Several years ago, Sheehan with the assistance of an ACLU attorney, won a suit brought by the credit bureaus when Sheehan placed the names, addresses, telephone and social security numbers on the web site . Attorney Doug Honig argued that unless a specific threat is made, no laws are broken. Furthermore, Honig argued, the fact that people don’t want such information up on the internet doesn’t make it unlawful. In awarding judgment to Sheehan, Judge Dwyer of the Western Washington Federal District Court specifically allowed that even the social security number was valid public information. Dwyer’s opinion was published, making it applicable to courts within the Ninth District, including all of those in the state of Washington.

Battle-hardened and flush with what was hailed as a significant victory for free speech on the internet, Sheehan refused to be intimidated by the Kirkland and King County lawsuits. Naturally, it helped to be backed by a homeowner’s insurance policy with very generous limits that is covering his legal expenses with regard to the web site. Sheehan will probably need it: inside sources have told Sierra Times that the city of Kirkland is prepared to spend as much as $350,000 of taxpayer money to go after justicefiles.org. To his credit, Sheehan wrote a letter to King County after the November ruling, asking them to release the information and not to continue to waste taxpayer money. Apparently, that was not a convincing argument.

Such extravagance calls into question the purpose of Kirkland’s lawsuit. Kirkland city manager David Ramsay claims, that justicefiles.org makes it harder for Kirkland to attract and retain employees. It’s hard to understand why this kind of money can not be used to “sweeten the pot” for current and prospective employees rather than to line legal pockets in what is becoming a futile attempt to quash free speech on the internet.

Several professors and law students in a recent colloquia at the nearby University of Washington law school also noted the futility of both lawsuits. They cited the strong First Amendment protections for any speech other than that “directly inciting or producing imminent lawless action or that likely to induce or produce such action.” The justicefiles.org site obviously and painstakingly avoid that level of speech, stating at the top of the home page: “THIS SITE DOES NOT ENCOURAGE VIOLENCE. If you don’t like the U.S. Constitution THEN GET OUT OF THE COUNTRY!!”

Kirkland and King County will have tough going on the first amendment issue in the Ninth federal district. Not only has Judge Dwyer ruled that private citizen’s social security numbers can be published, but the Ninth US Circuit Court of Appeals ruled in late March that an anti-abortion site that labeled specific abortion doctors as “baby butchers” was protected under the First Amendment. Three doctors were murdered after their names and addresses appeared on the site.

Their lawsuits are also weakened by the fact that there is no verifiable instance of harassment or other action against any of the police officers since justicefile’s March 17 debut. Sheehan explains why he thinks that there’s been no verifiable harassment: “Do you ever in your wildest bad days, ever call up a cop and harass him from your home phone?… That’s calling the wolf to your residence, and this one will come.” He says that Kirkland’s claim of a threat is just a red herring to achieve a legal end.

Recent Developments

The Kirkland suit was heard by King County Superior Court Judge Robert Alsdorf on May 2nd. Stephen Smith, an attorney hired by the Preston Gates (William Gates, Sr., is one of the partners) law firm to represent the city of Kirkland, acknowledged that the information on the web site could be obtained elsewhere, but insisted that the “mass disclosure” of such information was a violation of privacy and served no public purpose. Smith also argued that the speed and ubiquity of the internet made it possible for anyone to find out information more quickly than ever before. Police officers may voluntarily give out their social security numbers in a public document, Smith argued, “but there is no permission to assemble that information next to the fact that you are a public employee.”

Elena Garella noted that speed and accessibility is not an issue in whether the First Amendment applies or not. She noted that in 1789, when the First Amendment was adopted, that most information was spread by local newspapers and handbills. When radio and television came into existence, the First Amendment did not become moot because of the new technologies. Nor should it become void because of the internet’s capabilities, she argued. “You’d have to shut down all of Mr. Sheehan’s sources, commercial sites [and] the government, in order for an injunction to be effective.”

On May 9, Judge Alsdorf generally ruled that the publication of the names, addresses and phone numbers was within the scope of the First Amendment. He was clearly troubled by the publication of Social Security numbers, ruling that there was a reasonable expectation of privacy with regard to their use. But he found no credible specific threat or harm in the justicefiles web site. Alsdorf’s ruling can be found at either at the King County Superior Court web site or at John Young’s Cryptome site. Both sides’ lawyers have already filed for an appeal; Kirkland’s to try to get the home addresses redacted; Sheehan’s to get the social security numbers included. Naturally, both claimed victory in the case.

There is some delicious irony in the Kirkland case. The attorney representing Kirkland, Stephen Smith, is also the attorney for a number of newspapers around Seattle, including the Seattle Post-Intelligencer and has represented them on a number of first amendment cases. It’s likely that some of his clients are now wondering if their attorney does not indeed have a conflict of interest.

No Sign of Stopping

The Alsdorf decision was not the only good news Sheehan has received recently. The previous week, Sheehan won almost $14,000 in attorney’s fees in the King County case. His personal case stemming from the 1991 marijuana conviction is on appeal and will be heard in June.

Sheehan believes that the SSN ruling will be overturned on appeal, and he may have a valid basis for that belief. One attorney familiar with the case stated: “The court’s decision appears to be that publication of an individual’s SSN is an invasion of privacy that can only be tolerated if that invasion ‘relates to a public issue.’ The court finds that in this instance there is no public issue and therefore the publication of the SSNs does not constitute ‘substantive speech’ and thus is may be enjoined… If that were true, you’d think the court could point to a statute which bars private speakers from disseminating SSNs, but it can’t. Such legislation has been proposed, but it hasn’t passed… I know of no legal authority, and the opinion doesn’t cite any, that allows a court to enjoin a private speaker from engaging in ‘nonsubstantive speech’ because of the possibility that it infringes an individual’s privacy.”

The same attorney added: “I spent a lot of time counseling clients about what they can and can’t do with SSNs. It’s a pretty confused area of the law. This opinion only adds to the confusion. It muddles First Amendment and Equal Protection terminology, confuses private and state actors. The opinion is also internally inconsistent and its new concept of ‘substantive speech’ is bizarre… Regardless of whether you favor or oppose the specific outcome, it’s a bad opinion.”

Sheehan appears to be thriving on the legal challenges. When asked if he was planning on modifying his tactics, he replied: “This is a war, and I intend to win. I want them to realize that Bill Sheehan is not going to back down, and I’m going to turn up the heat even more. If they want to test my resolve, they’re welcome to. I have absolutely nothing to lose… I have an advantage that they cannot stand. I’m a private citizen, and am only answerable to the law. And they cannot stand having the law used against them.”

Sheehan now has the information for 15 more police departments queued up to go on his web site, and is now in the process of sending out hundreds of requests for information. How far will he take this? “Given the resources and the time, I would cover the entire state. Given the resources and the time, I would go beyond that. That’s my limitation.”

On the back burner, there’s even mention of filing a civil rights lawsuit over the attempts to constrain Sheehan’s First Amendment rights.

Cruising Along the Frontier

There’s no doubt that this is a groundbreaking case as far as free speech and the internet are concerned. The ability to correlate and widely disburse information at high speed dramatically lowers the barriers to obtaining public information. In the lawsuits against Sheehan, the plaintiffs concede that the information is available, but do not believe that it is legal to correlate that information or publish it in a highly accessible medium. In other words, the internet should be censorable because it’s a more efficient communications medium.

In the justicefiles case, though, it may be too late. Before the Alsdorf ruling, hundreds of people, including some reporters, spidered the site, copying all of the data that was ruled objectionable. It has appeared on other sites, mostly outside of the United States. It is even in the Google cache, although the page appears to be defective. (It can still be viewed in “page source” mode in a browser, complete with social security numbers.) It may take months before it’s removed from the Google cache.

Judge Alsdorf barred Sheehan and Rosenstein from giving the social security numbers to anyone else. Sheehan said he would encourage the people who had previously mirrored the site to get rid of the SSNs, but clearly cannot force people to do that. A few people have announced in other forums that they do not intend to remove the SSNs.

This case does raise a number of interesting and somewhat troubling questions. If a person is being paid with public money and is entrusted with the public trust, shouldn’t their lives be as open to public view as a private citizen’s? Shouldn’t the fact that a cop has a felony record or has a bankruptcy—a signal that he might be more vulnerable to bribery or other incentives—be available as part of the public record? Shouldn’t public employees be held to at least as high a standard of accountability as someone in the private sector?

An End Run Around the First Amendment

Apparently, some politicians don’t believe so. With increasing signs that the court cases are going to be resolved in favor of free speech on the internet, proponents of police secrecy are turning to the legislatures for relief. In April, Washington representatives Luke Esser (R-Bellevue) and Laura Ruderman (D-Kirkland) introduced House Bill 2249 into the Washington state legislature. The bill, if passed, will force those who release information about law enforcement personnel to fully disclose their own identities. It would also allow damages to be awarded against anyone who releases personal information, including home addresses, of law enforcement personnel or court employees.

This bill could easily open up huge liabilities for any financial institution or credit card company that sold information of such employees. Since credit bureaus, whose main business is marketing financial reports and mailing lists, do not track employment, this would essentially put them out of business. It would be similarly disastrous for banks, mail order houses, credit card companies, magazine distributors, and a host of other businesses as well. These and other businesses that depend on credit reporting and marketing systems have successfully fought the introduction of similar legislation in 41 states, as well as in the US Congress. Even the proponents of this bill consider its passage unlikely. Many legal scholars consider the bill to be unconstitutional and believe that it will never make it out of the judicial committee.

Ultimately, it’s going to come down to a choice between whether some groups of people can gain and hold special privileges or whether the equal protection clause and the First Amendment of the Constitution will prevail. Do we choose to have a police state where the police are granted even more special protections or do we choose to take the “less safe” path to police accountability?

Author: Sierra Times Exclusive Report 05.20.01

News Service: Sierra Times

URL: http://www.sierratimes.com/archive/files/may/20/arsierratimes.htm