Possibility that witness recordings would be uploaded to Internet no justification for withholding from press

In an order granting a journalist’s motion for the government to make available copies of tape recorded conversations that were introduced in a criminal trial, the U.S. District Court for the Eastern District of New York held that the likelihood of the tapes being broadcast over the Internet did not create significant or unique security concerns.

Jerry Capeci, author and publisher of the website Gang Land, sought an order from the court requiring the government to make copies of five tape recordings of conversations which were introduced in a previous criminal trial. The government responded by seeking a protective order citing various concerns, among them the security of witnesses and innocent third parties.

As part of its argument, the government contended that the duplication of the recordings for publication on the Internet would create a different and more significant security risk, apparently because of the Internet’s ability to permit the rapid and widespread dissemination of information. The government rejected this argument and granted Capeci’s request, ordering the government to make the tapes available for copying within seven days.

In rejecting the government’s argument that the likelihood of publication on the Internet creates a special security risk, the court noted the presumption that access to trial evidence should be made available where possible to interested members of the community who are unable to be present in court. The court stated that the capacity of the Internet to distribute the information over a wider area actually speaks in favor of, and not against, equal access to information for web-based journalists such as Capeci.

The court continued by rejecting the government’s argument that there is some inherent difference in the Internet which would give rise to heightened concerns. It noted that first amendment concerns would bar the court from allowing a news organization to publish a sound recording in only certain media (e.g., radio or television) while prohibiting dissemination over the Internet.

U.S. v. Massino, — F.Supp.2d —, 2005 WL 336304 (Feb. 14, 2005)