Should people be allowed to comment anonymously online? That question is currently making its way through the U.S. legal system. A New York couple has issued dragnet subpoenas to Google and Yahoo demanding the identities of users behind 10 email accounts, 30 blog operators, website administrators, and the identities of anyone who had ever commented on those sites. That's hundreds of people! Riding to the rescue of our privacy and freedom are our heroes — the EFF.
Miriam and Michael Hersh allege a "sweeping conspiracy led by family members and their acquaintances to accuse the Plaintiffs of mistreating their children and to cause a public controversy." This couple who, among other complaints, allege "intentional infliction of emotional distress" are the parents who made headlines in 2008 when news reports were published saying they had their then 16-year-old son, Isaac, taken to a privately owned correctional institution in Jamaica.
But my concern is not with the reason people were writing the anonymous comments. I’m alarmed over the possible consequences to privacy because of these wide-sweeping "dragnet" subpoenas. So is the EEF.
"The First Amendment protects individuals' right to speak anonymously and forces litigants to justify any attempts to unmask anonymous critics," said EFF Senior Staff Attorney Matt Zimmerman. "Litigants cannot forcibly identify entire communities of online speakers -- which include many speakers who no one would claim did anything wrong -- simply because the litigants are curious."
The EFF urges the court to protect privacy and anonymity. The EFF's motion to quash states, "Under the broad protections of the First Amendment, speakers have not only a right to publicly express criticism but also the right to do so anonymously. Accordingly, the First Amendment requires that those who seek to unmask online speakers (critics or otherwise) demonstrate a compelling need for such identity-related information before obtaining such discovery. No such need is implicated in this case.”
If anonymity is allowed to be pierced in this case, it could change our lives. Who would be targeted next? Trolls? Flamers? People who disagree? If this is allowed to go forward, users on Digg, Reddit, Stumble Upon, Twitter, Facebook, Windows Live Messenger, political commenters — users anywhere could be targeted next.
"Overbroad subpoenas targeting anonymous speakers without cause naturally creates a chilling effect that may discourage others from exercising their constitutional rights to participate in conversations that take place online," said Zimmerman. "We are asking the court to enforce these reasonable safeguards so that the rights of innocent speakers do not become collateral damage in a dispute between others."
Apart from identity-related information, the Plaintiffs seek the content of stored communications with an ISP or electronic communications facility. From Google, the Plaintiff wants all documents relating or referring to a list of sites, blogs, pages and/or groups. From Yahoo, the Plaintiffs wants all documents relating or referring to http://geocities.com/saveisaac. Furthermore, the Plaintiffs request all documents relating to and referring to, meaning email communications as well.
The EFF's motion to quash concludes with: “By targeting entire forums in which a wide range of topics are discussed, Plaintiffs attempt to take a shortcut through the legal rights of the forum hosts and their participants. Fortunately, state and federal law bars such attempts.”
We will be watching as this case could change history. If comments are not libel or death threats, need the commenter worry about their life being probed and their identity revealed?
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Ms. Smith (not her real name) is a freelance writer and programmer with a special and somewhat personal interest in IT privacy and security issues. Smith has a diverse background in information technology, programming, web development, IT consulting, and information security. She focuses on the unique challenges of maintaining privacy and security, both for individuals and enterprises. She has worked as a journalist and has also penned many technical papers and guides covering various technologies. Smith is herself a self-described privacy and security freak.
Smith is an independent contractor and is not affiliated with any vendor that makes or sells information technology.
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