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THE FIRST AMENDMENT CENTER
AT VANDERBILT UNIVERSITY
FIRST AMENDMENT LEGAL WATCH
by the Publications/Research Department
Vol. II, No. 44
IN THE STATE COURTS
Publisher Sues City For Release of "Cookie" Files
Geoffrey Davidian, publisher of The Putnam Pit=97which he describes as "a=
little watchdog paper that is very irreverent and acidic"=97has sued the =
of Cookeville, Tenn., for release of the "cookie" files on city-owned
"Cookies" are electronic files that some World Wide Web sites leave on th=
computers that access them. They allow Web site sponsors to keep track of
their visitors and to refine their marketing efforts.
Davidian wants to know what Web sites Cookeville city employees access. T=
case is the first of its kind and poses an important question: Are the
cookie files on government computers public records?
Davidian told The Tennessean: "I want them [the city=92s cookie files] to=
considered a public record. =85 It tells what [employees have] done with
their time. There may be nothing in the cookie file, but I want to see it=
Cookeville city manager Jim Shipley contends the city=92s computers are
programmed not to accept cookies. Even if they did, he says, cookies are
not public records.
Jane Kirtley, executive director of the Reporters Committee for the Freed=
of the Press, told the First Amendment Center that "if the city
government=92s computers are programmed not to accept cookie files, then =
cookie file should be empty and the suit over the cookie file might be a
The larger question, according to Kirtley, is: Who owns cookies?
"It is an important question," she said, "because if it is unclear who ow=
them, then the city could not use the justification that the cookie files
aren=92t city property to withhold the information. A logical analogy to
access to cookie files is access to government employees=92 cell-phone
records=97which are available in most jurisdictions."
David Sobel of the Electronic Privacy Information Center says there is al=
an analogy between cookie files and email.
"It has been clearly established that electronic mail records are subject
to public-records laws," he said. "Therefore, a good argument can be made
that cookie files which demonstrate the activity of government employees
would probably be subject to those same laws.
"The question becomes whether privacy exemptions in those laws apply, and
whether privacy interests in general outweigh the public interest in the
information," Sobel concluded.
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