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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

Do We Have a Right to Online Anonymity? Depends On Which Judge You Ask

Posted in Litigation, United States

The Edward Snowden leaks have forced Americans to question whether the government monitors their online activities.  But intelligence-gathering is not the only government threat to Internet privacy: plaintiffs in defamation cases are using court subpoenas to attempt to unmask Internet users’ identities.

In some seedy corners of the Internet, commenters use the veil of anonymity to utter vulgar, false, and damaging comments that they likely would never write if their names were attached.  Some defamation victims file lawsuits to mitigate the harm to their reputations.  Before they can collect damages, they must identify the defendant, and they typically accomplish this by issuing a subpoena to the defendant’s Internet Service Provider, seeking the defendant’s name and address.

Although these repulsive cases receive much publicity, they represent only a sliver of all anonymous online speech.  Online anonymity enables commenters to express unpopular political views, expose government corruption, and seek information about sensitive topics such as personal health.  Indeed, anonymous speech was the cornerstone of our nation’s founding, with the publication of the Federalist Papers under the pseudonym Publius.  Removing protections for anonymity would, to some degree, chill a form of speech that has been a bedrock of American democracy.

For more than a decade, state and federal judges have attempted to balance these competing interests as they determine whether the First Amendment protects the right to speak anonymously online.   Some courts require plaintiffs to demonstrate an exceptionally strong defamation case, and to satisfy numerous procedural requirements, before the courts will enforce subpoenas for the identity of anonymous Internet posters.  Other courts provide very little, if any, protection for online anonymous speech.

The issue came to a head in two recent defamation cases in the past month.  The Virginia Court of Appeals ordered Yelp to disclose the identities of seven users who wrote negative reviews of Alexandria, Va. carpet cleaning company.  Because the carpet cleaning company suggested that the reviewers were not actually customers, the court held that the reviewers’ identities were not protected under the First Amendment or state law.  The Court acknowledged that customers’ opinions on Yelp are generally protected opinion under the First Amendment, but reasoned that if “the reviewer was never a customer of the business, then the review is not an opinion; instead, the review is based on a false statement of fact—that the reviewer is writing his review based on personal experience.”

Also last month, a three-judge panel of the Michigan Court of Appeals granted a protective order that prevented a Warren, Mich. public works official from using court discovery to unmask the identities of people who anonymously criticized him on a local message board.   But the Michigan judges struggled to distinguish their decision from last year’s decision by another three-judge panel on the same court, which held that Michigan’s discovery rules, and not the First Amendment, apply to such requests.  In last week’s decision, the judges recognized the lack of concrete standards on this “complex and emerging” issue, and invited the state Legislature or Supreme Court “to consider anew this important question.”

Although the threat to anonymity is most commonly present in online defamation cases, it arises in other types of cases as well.  For instance, a federal magistrate judge in New Orleans recently granted a criminal defendant’s request to force the New Orleans Times-Picayune to provide identifying information about online commenters who had posted about a criminal investigation into the defendant.  The magistrate judge wrote that if the commenters was a Justice Department manager, “his or her identity might lead to the conclusion that there was a pattern, policy or practice of pre-indictment prosecutorial misconduct in the accusatory process material to Jackson’s defenses alleging violations of her due process rights.” The Times-Picayune has moved to quash the subpoena.

If one thing is clear, it is that there is no clarity.  State and federal courts will continue to issue a mish-mash of conflicting opinions that provide little consistency or certainty for online speech.  The U.S. Supreme Court, which is the final arbiter of all things constitutional, has not ruled the right to anonymous online speech.  The lower courts have been forced to guess the proper constitutional outcome based the Supreme Court’s most recent opinion on anonymous speech, a 2002 case involving a municipal requirement for door-to-door solicitors to display a permit that lists their name.

Eventually, the U.S. Supreme Court will have no choice but to provide a concrete guidance on whether the First Amendment protects anonymous online speech.  When it does, the justices should ensure that plaintiffs cannot use the court system to chill speech and suppress unpopular viewpoints. 

Some plaintiffs have good reason to attempt to expose the identities of individuals who make revolting, untrue, and damaging comments online.  But these trolls are a vocal minority of online speakers.  Courts should not address these rare cases by eroding the First Amendment protections that have been vital to our nation’s political discourse for centuries.

–  Jeff Kosseff is a media and privacy associate at Covington & Burling LLP.  The views expressed are those of the author and not of the firm.