Norfolk City Attorney tries to swat a gnat – and it swats back

Reading Christina Nuckols column in Sunday’s Virginian-Pilot, I found a kindred spirit who also thinks that campaigns spend way too much time paying attention to blogs. She even used the same terminology as I:

Blogs have real value, whether they’re generated by amateur political buffs or mainstream media. They can and do offer thoughtful analysis and poignant personal perspectives on important issues. The Internet increases access to information so voters can judge candidates for themselves. Voters can read McDonnell’s thesis criticizing working women in its entirety or watch Deeds snarl at a reporter for asking about taxes.

[…]

But blogs have had a huge and horrible effect on candidates and their staff. It’s too easy to become hermetically sealed in the campaign bubble and grow indifferent to the outside world.

[…]

A month from now, both Deeds and McDonnell will snap out of their trance and realize they wasted an opportunity to show Virginia that they are ready to lead this state for the next four years. The loser will regret that mistake for the rest of his life. The winner will realize he has a mandate to do exactly nothing.

But neither one is paying attention right now. They’re too busy swatting at gnats.

Given blog readership – especially when compared to the mainstream media – I often refer to paying attention to blogs as the equivalent of swatting gnats on an elephant’s rump (although I tend to be a bit more colorful than rump).

So you can imagine my surprise when I received by fax late Friday afternoon a letter from the Norfolk City Attorney’s office asking me to remove a comment from my blog. And if that weren’t enough, making the claim that if I failed to do so, it might subject me to “damages for for defamation and violation of privacy.”

Sorry – this gnat is swatting back.

Back on September 29, I wrote a post about a recent tax commissioner ruling. As of the date of this writing, it appears on page 3 of the blog, so you’d have to be looking for it in order to see it. On Sunday evening, nearly a week after the original post, someone made a comment. Despite my comment policy, I really don’t have the time to review every single comment posted on this site (which is why I don’t moderate comments). This is especially true on Mondays – my busiest day of the week at work – and whenever I’m approaching the 15th of the month, as it is a tax filing deadline. The lack of posts, as well as the content of those that were posted last week, should give you some hint as to how busy I’ve been.

The letter – with its vague threats – did nothing but make me angry. After a quick look at the Electronic Frontier Foundation’s Legal Guide for Bloggers, a link to which I keep in my sidebar, and a conversation with an attorney friend, I was convinced that the lawyer who drafted the letter must have thought me an idiot. The law is pretty clear:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

The plain language explanation of Section 230 (of Title 47 of the US Code) can be found in the EFF Guide.  In this case, as a provider of an interactive computer service – it’s my blog – I can’t be held liable for “any information provided by another information content provider,” that is, comments. There goes any claim that I could be subject to any defamation claim.

(Now, it’s possible that the person who commented might be. But the bar on proving defamation by a public figure is pretty high.)

As for the request to turn over the commenter’s name and email address – well, the name is in the comment. As for the email address – um, no.  First of all, what makes the City Attorney’s office think they have the power to ask anyone to turn over private information without giving a lawful reason? Even if they had offered a lawful reason for their request, I would not share this information unless ordered by a court. Just over six months ago, a Virginia blogger was issued a subpoena – not just a faxed letter containing threats – requesting the same thing. A legal team comprised of Public Citizen, the American Civil Liberties Union of Virginia and the Thomas Jefferson Center for the Protection of Free Expression filed a brief (pdf)  in which they argued that bloggers have the same protections as traditional journalists. One of these protections is a “qualified reporter’s privilege,” which generally permits reporters to keep confidential the sources of the information they come across.

As for the issue of privacy – the original comment contained the name of a current employee of the Commissioner of the Revenue’s office. I didn’t see it until I looked at the comment after receiving the letter and it has been redacted. I’m told that the offices of the City Attorney and CoR had monitored the comment for several days before sending me the letter.

Funny – they had no problem calling my office for my fax number but couldn’t pick up the phone to make me aware of the comment and their issues with it? I find that ludicrous. Instead of reaching out, they prolonged a situation unnecessarily. If they were truly concerned about protecting someone’s privacy, it would have made sense to contact me as soon as they saw it.

Instead, they tried to use a hammer.

In the interest of trying not to make them look incompetent, I gave them an opportunity to retract this letter to me. I could have used their tactics instead and posted this letter once I got it and left it up all weekend for everyone to see.  But I didn’t. I gave them until 10am Monday morning to issue a retraction. Had they done so, you wouldn’t have ever seen this.

But they didn’t – and you did.

There’s a lot that’s wrong about Norfolk. This is just one more piece of it.