Over the holidays, a New Jersey court issued an order requiring upstream providers to shut down three anti-H1-B websites that is deeply dangerous and wrong. The order not only tries to remove allegedly defamatory messages but also requires a complete shutdown of the websites and even purports to require the cooperation of the hosting companies and domain registrars of the websites to do so and for other service providers to identify anonymous speakers.
The plaintiff in the lawsuit, Apex Technology Group, is a staffing and consulting services company. Apex describes itself as "delivering sophisticated technology-enabled solutions to maximize complex business needs." The dispute apparently started when someone uploaded a document purporting to be an Apex employment agreement to docstoc.com, and noted several terms the poster considered unfair to H1-B workers (copy of original post). The H-1B is a non-immigrant visa that allows U.S. employers to temporarily employ foreign workers in specialty occupations. The defendant websites allegedly linked to this post and document, and Apex demanded its removal. Curiously, Apex simultaneously claimed that the document defamed them and that they were its copyright owners. This is unusual, since people rarely defame themselves with their own copyrighted works.
The document and the surrounding controversy prompted further heated discussion in which the websites allegedly accused Apex of being a “bodyshop" that engaged in bad practices while employing H1-B visa workers from India. According to papers Apex filed with the court, at least one website claimed that its members provided evidence of widespread visa and labor fraud by Apex, which they apparently reported to the government. Apex denies any wrongdoing.
Rather than responding to the substance of the criticisms, Apex took the matter to court to try to remove them from the internet. On December 23, Judge James Hurley issued a prior restraint against endh1b.com, itgrunt.com and guestworkerfraud.com, ordering the websites to remove all postings about Apex Technology Group or its President, Sarvesh Kumar Dharayan, until further order of the court. The court also ordered the sites’ ISPs/domain name registrars (DiscountASP.NET, GoDaddy.com, Domains By Proxy and Network Solutions) to stop hosting and “immediately shut down and disable” the websites. Finally, the order requires the ISPs to provide identity information about their customers.
This order dangerously overreaches. By restricting access to entire websites, it places a prior restraint on all of the speech on the websites, even if that speech is unrelated to Apex or Mr. Dharayan. Imagine if a court could order Amazon.com or Yelp.com shut down because of a disparaging review of a single product.
Prior restraints are improper in cases such as this due to the obvious First Amendment problems they pose. Courts limit such injunction to the rare circumstances when (1) the activity to be restrained poses either a clear and present danger or a serious and imminent threat to a protected competing interest, (2) the order is narrowly drawn and (3) less restrictive alternatives are not available. Instead, damages are the preferred sanction for defamatory speech. Here, Apex says it is not even seeking damages. And even if Apex had a valid defamation claim, the wholesale shutdown of a website is not a narrow remedy for a few allegedly defamatory postings.
The New Jersey court’s overreaching order shutting down these websites also is inconsistent with federal law to the extent that it holds service providers to account for user posts. Among other claims, Apex complains about several postings by a anonymous posters that were "allowed to remain public" on Apex’s comment sections. Yet, section 230 of the federal Communications Decency Act protects websites that host content posted by users, providing immunity for a website from state law claims (like defamation) based on the publication of "information provided by another information content provider."
Additionally, the order has troubling implications about the longstanding constitutional right to anonymous speech. In fact, New Jersey was one of the first jurisdictions to apply the right to anonymous speech to the Internet, rendering a decision that has been widely followed over the last decade. Nevertheless, the court ordered Comcast, Yahoo and Facebook to provide identifying information on the anonymous speakers despite the fact that neither the speakers nor the service providers where present at the hearing. Comcast, which is covered by the Cable Privacy Act, was to provide 14 days for the user to challenge the order, while Yahoo and Facebook were ordered to provide the information in 5 days (over the Christmas weekend), without a provision for challenging the order. Facebook has stood up to the order and has not provided the requested information.
Ordinarily, in order to safeguard this First Amendment right, a litigant seeking to unmask an anonymous speaker would need to obtain a subpoena from an appropriate court (i.e. Santa Clara county in California for Yahoo) and serve the service provider. Then the service provider would provide adequate notice to the user, and the user could move to quash the subpoena, asserting whatever defenses the user may have. These procedures are vital to protecting speech rights, and it was inappropriate and unnecessary for the New Jersey court to short-cut that process, especially over a holiday period when its is all the more difficult to obtain emergency legal assistance.
Finally, it was wrong for the court to require the upstream providers to unplug the website. Under New Jersey law, injunctions should only reach those who engage in "active concert or participation" with the person who acted wrongly. There’s no indication that the upstream providers or domain name registrars for the websites even knew about the postings in question, much less acted in "active concert" with them. Requiring domain name registrars to turn off websites in litigation about the website is a tactic that has already been rejected.
The New Jersey court order is therefore wrong in at least four ways: (1) it creates a prior restraint that takes down too much speech, (2) it wrongly punishes websites for the speech of their commenters, (3) it wrongly requires the identification of anonymous speakers without sufficient opportunity to challenge the disclosure, and (4) it wrongly enlists out-of-jurisdiction upstream providers who did not act in concert with the websites in taking down speech. We hope the parties and the upstream and domain name hosts involved will seek to overturn it.