NJ Bills Would Chill Online Anonymous Speech
A proposed New Jersey bill would eliminate online anonymous speech by requiring every Internet service provider, blog, and website that allows reader comments or provides open forums to demand user identification from every participant. Assemblyman Peter Biondi's A1327 would also require that service providers record your "legal name," and reveal your identity to anyone claiming to have been defamed, on pain of crippling liability. A similar bill, A2623, sponsored by Assemblymen Wilfredo Caraballo and Upendra J. Chivukula, would require ISPs to disclose user identities, as well as allow anyone to demand removal of published content, based on a mere defamation allegation. Not only are these bills bad policy, but they're also clearly prevented by the New Jersey and US Constitutions as well as federal law.
Curbing defamation online is a worthy goal, but most courts are already handling these claims well. EFF and others have worked hard to develop a set of tests for courts to use when deciding how to balance a speaker's anonymity rights with claims of defamation.
These new bills present "cures" that are far worse than the disease. Whistleblowers revealing corporate malfeasance, citizens complaining about political figures, assault victims seeking support groups, patients asking about controversial medical information - in these and many more instances, people need assurances that speaking online won't open them up to harassment. EFF has been involved in numerous cases in which companies, employers, politicians, and others have filed bogus defamation claims simply to learn someone's identity and intimidate him or her. A1327 and A2623 would give these tactics a free pass, chilling speech online.
And that's why federal law (namely, Section 230 of the Communications Decency Act of 1996) already preempts such state laws. Moreover, it is well-settled that the First Amendment shelters the right to speak anonymously. Even if the litany of US Supreme Court precedents rejecting this sort of law were not enough, New Jersey courts have held that attempts to unmask online speakers require strict procedural safeguards "as a means of ensuring that plaintiffs do not use discovery procedures to ascertain the identities of unknown defendants in order to harass, intimidate or silence critics in the public forum opportunities presented by the Internet."
These bills are simply a waste of time and taxpayer money. EFF hopes they will be nipped in the bud and will continue to monitor them. For more information about your legal rights, see our Legal Guide for Bloggers.