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A Website Claims It is Publishing the Names of Confidential Informants and Undercover Government Agents: Why It's Legal For It to Do So


Thursday, Dec. 21, 2006

Is it legal for a website to publish the names and photos of persons its users claim are criminal informants (often referred to as "rats" or "snitches"), or undercover police agents? A website called "Who's a Rat" says it is doing just that.

While it's understandable that judges and the police are outraged by the site, the site appears perfectly legal - and it seems it will remain so, unless it ever were to actually threaten informants or undercover agents.

Absent such a threat, the content of the web site is protected by the First Amendment. In this column, I'll explain why - drawing upon a key precedent relating to speech online that may be linked to potential real-world violence.

The Site: The Information It Contains, and Its Stated Purpose

According to news reports, Sean Bucci, a former Boston-area DJ, created after he was charged with allegedly selling marijuana in bulk out of his apartment.

On the site, each listing may include an informant's or officer's full name, age, address, and occupation, as well as agencies for which he or she works. The information also includes facts that may bring his or her credibility into question; any known criminal record; and a photo, if available (photos of undercover agents are not posted on the site for safety reasons). Users need to supply their own contact information, or that of their lawyers, when posting information or comments. Users can also post court documents or government records. The site used to be free, but now its database is subscription-only, and can be accessed only for a fee.

What is the site's purpose? The site itself says it is "a database driven website designed to assist attorneys and criminal defendants with few resources. The purpose of this website is for individuals and attorneys to post, share and request any and all information that has been made public at some point to at least one person of the public prior to posting it on this site pertaining to local, state and federal Informants and Law Enforcement Officers." (Emphasis added.) In other words, the site's stated intention is that truly confidential information should never be posted.

It is easy to see why this website could be of use to criminal defense attorneys and criminal defendants attempting to impeach the credibility of their accusers. Moreover, to the extent that the website flushes out reliable information as to credibility, it may end up serving the cause of justice by preventing wrongful convictions.

Moreover, some who contribute to the website see it as only fair play: Since the government is compiling databases on various citizens and suspects, they feel it is only just that citizens do the same thing, and watch the watchers.

Why the Site Is Of Great Concern to Judges and the Police

On the other hand, however, many worry the site will be used for other purposes: to gain information for retaliation against the informants and agents, or to avoid detection for ongoing criminal schemes. Currently, there seems to be a strong backlash against informants in a number of communities, which has even led to T-shirts proclaiming, "Stop Snitching," and some see the site as part of this backlash.

No wonder recent news reports indicate that judges are worried about the safety of witnesses who may be outed on the site. And no wonder, too, that police expect that, due to the site's existence, fewer people may cooperate with law enforcement and testify in court on the side of the prosecution.

The Planned Parenthood Case: In Some Cases, True Hit Lists Can Be Illegal

But can the site be blamed for the fact that it could be misused? From a First Amendment perspective, the answer is no.

It's notable that the website states, "THIS WEBSITE DOES NOT PROMOTE OR CONDONE VIOLENCE OR ILLEGAL ACTIVITY AGAINST INFORMANTS OR LAW ENFORCEMENT OFFICERS." It also asks that visitors only post information relating to non-violent crimes - perhaps in order to reduce the chance that the site will be used by the violent, in order to plan further violence. Moreover, no actual violence has yet been traced to the site.

Based on these facts, the website is quite different from the site at issue in the most relevant precedent: Planned Parenthood of the Columbia/Willamette, Inc., et al., v. American Coalition of Life Activists, et al. There, the U.S. Court of Appeals for the Ninth Circuit allowed a site to be closed down -- despite First Amendment objections -- because it contained what appeared to be a virtual "hit list" of abortion doctors, along with their addresses. Several of the doctors listed had earlier been murdered; the defendants' list put strikes through the names of murdered doctors, and grayed out the names of those who had been wounded.

Accordingly, a slim majority of the Ninth Circuit en banc panel concluded that "even though the defendants were responsible neither for the earlier 'wanted posters' nor the earlier killings, the context created by those posters and killings gave the defendants' posters and website a threatening meaning." (When a federal circuit seeks to review the decision of one of its three-judge panel, the larger panel that reviews the original decision is known as an "en banc" panel.)

It's important to note that even the Planned Parenthood decision - which was based on facts much more dramatic and troubling than the facts currently surrounding -- was a close one. It split the U.S. Court of Appeals for the Ninth Circuit's en banc panel 6-5.

Another Precedent: A Criminal Defendant Is Allowed To Keep His Case Website

Another precedent is also very relevant to the legal status of In 2004, Leon Carmichael, an Alabama man charged with money laundering and drug trafficking offenses, won a federal court case, in the Middle District of Alabama, in which prosecutors sought to have him take down his web site.

The site had contained the names and photos of four supposed informants, and of one DEA agent involved in the case against Carmichael. The site posted their photos under the heading, "WANTED: Information on These Informants and Agent." The website also included a disclaimer stating that the site was "definitely not an attempt to harass or intimidate any informants or agents, but is simply an attempt to seek information." Carmichael included the contact information for his attorney as well.

Despite the disclaimer, federal prosecutors argued that the website, in effect, threatened the informants and the agent. However, a federal judge held that Carmichael was entitled to maintain the web site based on both his First Amendment rights to free speech, and his Fifth and Sixth Amendment rights to defend himself. The judge also concluded that attempting to force Carmichael to take the site down was the kind of "prior restraint" the First Amendment prohibits. The judge viewed the website as the same as other "time-tested investigative techniques," such as canvassing a neighborhood for witnesses, that are often used to mount a defense in a criminal case.

The court distinguished the Planned Parenthood precedent by pointing out that "Carmichael's website was not put up in the context of a recent string of murders linked to similar publications," and thus could not be construed as, in effect, a threat. The court said it might have seen an analogy to Planned Parenthood "if there was a history of witnesses or government agents being threatened or killed after the release of 'wanted-style' posters on which they were pictured," but noted no such pattern existed with respect to the Carmichael case.

Based on these two precedents, it seems quite clear that, as long as the site is simply a clearinghouse of names of informants and agents - without any history of violence connected to the site, or any specific intent to harm the informants or agents - it will remain protected by the First Amendment.

Anita Ramasastry is an Associate Professor of Law at the University of Washington School of Law in Seattle and a Director of the Shidler Center for Law, Commerce & Technology. She has previously written on business law, cyberlaw, and other legal issues for this site, which contains an archive of her columns.

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