Judge lifts Indybay gag order over voided search warrant

San Francisco police on Jan. 24, 2024, obtained a warrant to search independent news outlet Indybay’s electronic data, along with a 90-day gag order preventing Indybay from discussing or writing about its existence, according to court documents.

The warrant, which police later decided against pursuing, sought to identify the author of an Indybay post who claimed to have vandalized the San Francisco Police Credit Union.

The nondisclosure order was ultimately lifted on March 7 by San Francisco Superior Court Judge Linda Colfax, allowing Indybay to speak publicly about the warrant. Also on March 7, the San Francisco Police Department said it had decided not to act on the warrant due to potential First Amendment issues.

The warrant stemmed from a Jan. 18 post on Indybay, published under the pseudonym “some anarchists,” in which the author took responsibility for having smashed windows at the credit union earlier that day in an “act of vengeance” on the one-year anniversary of the police shooting death of an environmental activist in Atlanta.

Indybay, a volunteer-run, community-sourced newswire also known as the San Francisco Bay Area Independent Media Center, allows anyone to self-publish articles, photos, videos and other material on the site. The posts are reviewed by Indybay editors, who according to the site’s editorial policies may combine them, make edits for spelling or grammar, or hide them if they are deemed “false, libelous, abusive … or hate speech.”

On Jan. 24, the police obtained the search warrant, which required Indybay to turn over information that would help identify the author of the story, such as IP addresses, website login credentials, and email addresses and phone numbers.

Indybay asked the police to withdraw the warrant on Jan. 29, arguing that it was illegal under California’s shield law and the federal Privacy Protection Act, according to the Electronic Frontier Foundation, which provided the outlet with pro bono legal assistance. The SFPD told Indybay on Jan. 31 that it would take no further action on the warrant.

Indybay filed a motion on Feb. 22 not only to formally quash the warrant but also the nondisclosure order — which remained in effect — arguing that it violated the First Amendment as a “content-based prior restraint on speech.”

Colfax vacated the gag order on March 7, while also confirming that the search warrant had become void on Feb. 3, “as no search occurred and no records were received.”

EFF Staff Attorney F. Mario Trujillo told the U.S. Press Freedom Tracker in an email that “SFPD and the judge did not end up taking a position” on the argument that the search warrant was unlawful. “SFPD, instead, took the position that—regardless of whether the warrant was unlawful when it was first issued—it became void after 10 days when SFPD declined to pursue it further in the face of Indybay’s resistance,” he added.

Trujillo went on to say that Colfax supported that interpretation in her order, adding, “It was important for the judge to confirm that and give Indybay certainty on the record.”

SFPD, in a March 7 news release, said that when Police Chief William “Bill” Scott learned of the warrant, he “immediately ordered officers to not pursue it over questions about possible First Amendment and Freedom of the Press issues.”

The statement added that the police department is committed to supporting the free press and has policies and training related to California’s shield law. The SFPD had previously pledged to ensure that all employees were properly trained on journalist protections with regard to police searches and subpoenas as part of a settlement after a police raid and search of a journalist’s home in 2019.