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    New York Times: At the Uneasy Intersection of Bloggers and the Law

    The New York Times has an interesting story on bloggers and freedom of anonymous speech.

    A grand jury subpoena sent by prosecutors in the Bronx earlier this year sought information to help identify people blogging anonymously on a Web site about New York politics called Room 8.

    The subpoena carried a warning in capital letters that disclosing its very existence “could impede the investigation being conducted and thereby interfere with law enforcement” — implying that if the bloggers blabbed, they could be prosecuted.

    “We were totally perplexed,” said Ben Smith, who co-founded Room 8 with Gur Tsabar. (The site calls itself an “imaginary neighbor” to the press room — Room 9 — in City Hall in New York.) The two promptly began looking for a lawyer. “We knew enough to be scared.”

    This, of course, is a blogger’s nightmare: enforced silence and the prospect of jail time. The district attorney eventually withdrew the subpoena and lifted the gag requirement after the bloggers threatened to sue. But the fact that the tactic was used at all raised alarm bells for some free speech advocates.

    This situation is not unusual. There are many examples of companies or individuals unhappy with anonymous postings online attempting to unmask the writers by pressuring site owners or Internet Service Providers.

    In Dominick v. MySpace , an Illinois official asked (pdf) a Cook County Circuit Court judge to order social networking site MySpace to reveal the identities of the author of two MySpace profiles. The official alleged “defamation, invasion of privacy and related torts.” The Electronic Frontier Foundation filed an amicus curiae brief (pdf) in Dominick v. MySpace . (An amicus curiae brief is filed by a person or group who is not a party in the case, but wishes to address issues of law, policy, or some other aspect of the case.)

    EFF Senior Staff Attorney Matt Zimmerman said, “If Mr. Dominick’s claims are legitimate, he may be able to obtain the identifying information that he seeks. Until he meets his burden, however — including, among other things, attempting to notify the author of this court action and identifying the allegedly defamatory statements at issue — the court should not grant his request. The First Amendment requires courts to guard against attempts to unmask critics who have simply made statements litigants don’t like, especially when such requests are made by elected officials.”

    While at the Electronic Privacy Information Center, I was one of several people (counsels listed on the brief: New Jersey attorney Grayson Barber, EFF’s Lee Tien, ACLU-NJ’s Ed Barocas) who worked on an amicus brief (pdf) in New Jersey v. Reid , an appeal to the state Supreme Court regarding a subpoena to an Internet service provider demanding data on a customer. The lower court held (pdf) that subscribers have a reasonable expectation of “informational privacy,” defined as “the ability to control the acquisition or release of information about oneself.” In a unanimous ruling, the New Jersey Supreme Court upheld the lower court ruling and found that Internet service providers must protect user information and a valid subpoena is needed before the providers can disclose private data about subscribers.

    There are many more such stories. I believe it is important to remember that anonymous speech and association are fundamental civil liberties. Those who choose anonymous speech may not be malicious criminals, but rather choose anonymity because of valid fears of reprisal or retribution.

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