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Everyone Should Have a Real Chance to Defend Their Anonymity

UPDATE (August 10, 2017): The court hearing the case ordered [.pdf] the unsealing of EFF's letter brief, which you can read here [.pdf]. Because the case is entirely under seal, EFF had to file its brief under seal and could not immediately publish the letter. 

In the United States, everyone – even people accused of offensive conduct – has the right to communicate anonymously, and that right should never be infringed without due process. Our Constitution guarantees this, whether your speech is popular or distasteful. At the same time, people who have been harmed by an anonymous speaker also have a right to seek justice, and, where necessary, that process can include unmasking the speaker.

Following a rash of bogus defamation lawsuits designed primarily to unmask anonymous online speakers and retaliate against them, courts around the country adopted legal tests to determine when people suing anonymous speakers are entitled to unmask them. Recognizing the First Amendment interests at stake, these tests require plaintiffs to establish the legitimacy of their claims and their need for the information.

But as we explained in a letter brief filed today in a New York state court, those tests mean little if they are not applied rigorously, and if the speaker in question doesn't have a chance to raise the issue at all. (The brief is currently under seal, but watch this space – we'll be asking the court to unseal it promptly).

Unfortunately, that's precisely what is about to happen to almost 300 Tumblr users who reblogged a sexually explicit video of a 17-year-old girl created 10 years ago. The person in the video (suing as Jane Doe) thought it had been destroyed, but she recently discovered it had been posted on Tumblr and then reblogged hundreds of times. She wants to sue those users for distribution of child pornography and intentional infliction of emotional distress. To help her do so, a New York judge has ordered Tumblr to disclose account information for those users. Tumblr pushed back, and managed to narrow the number of users affected. Nonetheless, last week Tumblr notified those users that their account information would be disclosed unless they challenged the order by July 7. In other words, the users had just 10 days – including a major holiday weekend – to read the notice, find a lawyer, and run to court to defend their anonymity.

To be clear, if the allegations are true, the plaintiff in this case has been wronged. But that's just the thing – First Amendment protections for anonymous speech never disappear, no matter how awful the defendant's alleged act. In fact, that's when the protection is most needed. Depending on how the plaintiff handles the case, close to 300 Tumblr users risk being publicly associated with child pornography. Those users will be under tremendous pressure to settle any claims, whether or not they have valid defenses. Once lost, their anonymity cannot be recovered and the association cannot be undone. And keep in mind that Tumblr, no matter how careful it tries to be, may disclose the wrong account information.

The court initially demanded disclosure within just five days, so 10 days is an improvement. But it's still far too little time, especially given that the harm to the plaintiff has already occurred. There is no immediate need to disclose account information without giving the anonymous speakers sufficient time to challenge the propriety of the order and/or the accuracy of Tumblr's identification. So we're asking the court to first apply the legal test required by the First Amendment to unmask anonymous speakers, and, if the test is satisfied, to extend the deadline for disclosure so that users can challenge the order if they have a legitimate basis to do so (e.g., because they were improperly identified, or not subject to the jurisdiction of the court).

We don't tell the court how to rule once it has applied the test required by the First Amendment. If the standards are met, the court may authorize disclosure. But sidestepping the test altogether is wrong. We urge the court to do the right thing, and follow the Constitution.

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