Investigating Blog Comments in A Criminal Case:
The New York Times offers up this interesting story about an effort by criminal investigators to subpoena IP addresses of blog commenters from a blogger. The subpoena was withdrawn, so there won't be a court decision on it. At the same time, some of the discussion of the legal principles in the article struck me as a bit off.

  In particular, my understanding is that the government has no power (absent statutory authority, which would be subject to serious First Amendment challenge) to order the recipient of the subpoena not to disclose it. According to the Times story, "the subpoena carried a warning in capital letters that disclosing its very existence 'could impede the investigation being conducted and thereby interfere with law enforcement'." No doubt this was written to create the impression that going public with the subpoena could lead to criminal prosecution. But my understanding is that, as a matter of law, it actually has no legal effect. Do others disagree?

  Second, there is an important line of cases on how the First Amendment applies to grand jury subpoenas in relatively similar settings that I think would frame any First Amendment issue. See generally Branzburg v. Hayes, 408 U.S. 665 (1972), and its progeny, such as The New York Times Co. v. Gonzales, 459 F.3d 160 (2nd Cir. 2006) (allowing grand jury subpoena for reporter's telephone logs). Given those precedents, I don't think the issue here is as novel as the article suggests.

  Thanks to Ben Smith for the link. For more on the story, see here.