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Over the past month, the independent news outlet Indybay has quietly fought off an unlawful search warrant and gag order served by the San Francisco Police Department. Today, a court lifted the gag order and confirmed the warrant is void. The police also promised the court to not seek another warrant from Indybay in its investigation.

Nevertheless, Indybay was unconstitutionally gagged from speaking about the warrant for more than a month. And the SFPD once again violated the law despite past assurances that it was putting safeguards in place to prevent such violations.

EFF provided pro bono legal representation to Indybay throughout the process.

Indybay’s experience highlights a worrying police tactic of demanding unpublished source material from journalists, in violation of clearly established shield laws. Warrants like the one issued by the police invade press autonomy, chill news gathering, and discourage sources from contributing. While this is a victory, Indybay was still gagged from speaking about the warrant, and it would have had to pay thousands of dollars in legal fees to fight the warrant without pro bono counsel. Other small news organizations might not be so lucky. 

It started on January 18, 2024, when an unknown member of the public published a story on Indybay’s unique community-sourced newswire, which allows anyone to publish news and source material on the website. The author claimed credit for smashing windows at the San Francisco Police Credit Union.

On January 24, police sought and obtained a search warrant that required Indybay to turn over any text messages, online identifiers like IP address, or other unpublished information that would help reveal the author of the story. The warrant also ordered Indybay not to speak about the warrant for 90 days. With the help of EFF, Indybay responded that the search warrant was illegal under both California and federal law and requested that the SFPD formally withdraw it. After several more requests and shortly before the deadline to comply with the search warrant, the police agreed to not pursue the warrant further “at this time.” The warrant became void when it was not executed after 10 days under California law, but the gag order remained in place.

Indybay went to court to confirm the warrant would not be renewed and to lift the gag order. It argued it was protected by California and federal shield laws that make it all but impossible for law enforcement to use a search warrant to obtain unpublished source material from a news outlet. California law, Penal Code § 1524(g), in particular, mandates that “no warrant shall issue” for that information. The Federal Privacy Protection Act has some exceptions, but they were clearly not applicable in this situation. Nontraditional and independent news outlets like Indybay are covered by these laws (Indybay fought this same fight more than a decade ago when one of its photographers successfully quashed a search warrant). And when attempting to unmask a source, an IP address can sometimes be as revealing as a reporter’s notebook. In a previous case, EFF established that IP addresses are among the types of unpublished journalistic information typically protected from forced disclosure by law.

In addition, Indybay argued that the gag order was an unconstitutional content-based prior restraint on speech—noting that the government did not have a compelling interest in hiding unlawful investigative techniques.

Rather than fight the case, the police conceded the warrant was void, promised not to seek another search warrant for Indybay’s information during the investigation, and agreed to lift the gag order. A San Francisco Superior Court Judge signed an order confirming that.

That this happened at all is especially concerning since the SFPD had agreed to institute safeguards following its illegal execution of a search warrant against freelance journalist Bryan Carmody in 2019. In settling a lawsuit brought by Carmody, the SFPD agreed to ensure all its employees were aware of its policies concerning warrants to journalists. As a result the department instituted internal guidance and procedures, which do not all appear to have been followed with Indybay.

Moreover, the search warrant and gag order should never have been signed by the court given that it was obviously directed to a news organization. We call on the court and the SFPD to meet with those representing journalists to make sure that we don't have to deal with another unconstitutional gag order and search warrant in another few years.

The San Francisco Police Department's public statement on this case is incomplete. It leaves out the fact that Indybay was gagged for more than a month and that it was only Indybay's continuous resistance that prevented the police from acting on the warrant. It also does not mention whether the police department's internal policies were followed in this case. For one thing, this type of warrant requires approval from the chief of police before it is sought, not after. 

Read more here: 

Stipulated Order

Motion to Quash

Search Warrant

Trujillo Declaration

Burdett Declaration

SFPD Press Release

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Can free and open source software projects like Caddy and Traefik eventually replace EFF’s Certbot? Although Certbot continues to be developed, we think tools like these help offer a promising path forward in the further development of a secure and encrypted web. For some users, tools like these can replace Certbot completely. 

We started development on Certbot in the mid-2010s with the goal of making it as easy as possible for website operators to offer HTTPS. To accomplish this, we made Certbot interact the best we could with existing web servers like Apache and Nginx without requiring any changes on their end. Unfortunately, this approach of using an external tool to provide functionality beyond what the server was originally designed for presents several challenges. With the help of open source libraries and hundreds of contributors from around the world, we designed Certbot to try to reparse Apache and Nginx configuration files and modify them as needed to set up HTTPS. Certbot interacted with these web servers using the same command line tools as a human user, and then waiting an estimated period of time until the server had (probably) finished doing what we asked it to. 

All of this worked remarkably well. Today, Certbot is used to maintain HTTPS for over 30 million domain names and it continues to be one of the most popular ways for people to interact with Let’s Encrypt, a free certificate authority, which has been hugely successful by many metrics. Despite this, the ease of enabling HTTPS remains hindered by the need for people to run Certbot in addition to their web server. 

That's where software like Caddy and Traefik are different. They are designed with easy HTTPS automation in mind. Caddy even enables HTTPS by default. They both implement the ACME protocol internally, allowing them to integrate with services like Let’s Encrypt to automate regularly obtaining the certificates needed to offer HTTPS. Since this support is built into the server, it completely avoids problems that Certbot sometimes has as an external tool, such as not parsing configuration files in the same way that the software it's trying to configure did. Most importantly, there's less effort required for a website operator to turn on HTTPS, further lowering the barrier to entry, making the internet more secure for everyone. 

Both Caddy and Traefik are written in Go, a memory safe programming language. The Apache and Nginx web servers that Certbot interacts with were written in C, which is not memory safe. This may seem like a minor technical detail, but it’s not. A memory safe programming language is one that systematically prevents software written in it from having certain types of memory access errors which can occur in other programming languages. Studies have found that these memory safety errors are responsible for the majority of security vulnerabilities, leading to a growing push for the development of memory safe software. By adopting software like Caddy or Traefik, you’re able to proactively eliminate an entire class of common security vulnerabilities from that part of your system. 

With these benefits and Certbot’s limitations, should tools like Caddy and Traefik replace Certbot? Yes, they probably should eventually. While EFF does not endorse any specific product or service, we think that software like this is part of a larger suite of tools that will eventually make Certbot no longer needed. The ecosystem will be better served by using integrated software, not external tools that try to configure old and hard-to-use ones. 

No single approach to securing traffic to a website will work for everyone. For example, many hosting providers now offer HTTPS, and this will almost certainly be an easier approach than using any other external software. If you run a website and previously used a tool like Certbot though, consider whether software like Caddy or Traefik is a better fit for you. These tools have been around for years and have extensive user bases. You can use Caddy or Traefik as a TLS terminating reverse proxy or even use Caddy directly as your file server. 

If Certbot continues to work best for you for some use cases, that's also okay. We plan to continue developing the project until the happy day comes when running an HTTPS site is so simple that Certbot is no longer needed. Until that day, if you do continue using Certbot, please consider donating to EFF so that we’re able to continue supporting the project.

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