Arizona Affirms Strong Protections For Anonymous Speech Online
An Arizona appellate court today joined a growing judicial consensus recognizing the need to protect the anonymity of online speakers from overreaching discovery requests.
Mobilisa, a Washington-based communications company, went to court last year to seek the identity of an individual who had obtained an email initially sent by company's CEO to his mistress. The individual forwarded the email to company employees. A lower court agreed to issue a subpoena requiring Doe's ISP to reveal Doe's personal information. Doe and the ISP, represented by longtime EFF cooperating attorney Charles Lee Mudd, Jr., immediately appealed. EFF and Public Citizen (with help from Arizona attorney John Flynn) filed an amicus brief in support of Doe, pointing out that strong protection for the right to engage in anonymous communication--to speak, read, listen, and associate without revealing your full identity--is fundamental to a free society. In fact, the tradition of anonymous speech is older than the United States. Founders Alexander Hamilton, James Madison, and John Jay wrote the Federalist Papers under the pseudonym "Publius."
Concerns about political or economic retribution, harassment, or even threats to their lives lead many people today to choose to speak anonymously. For these individuals and the organizations that support them, secure anonymity is critical, often to their very safety, and courts should not permit the use of trumped up legal claims as an excuse to silence people who need anonymity. At the same time, people who have legitimate grievances against anonymous speakers should be able to pursue them in court. Recognizing these competing concerns, courts around the country have set up a flexible test for those seeking to unmask anonymous speakers: they require litigants who seek an anonymous speaker's identity to show that they have given notice of the attempt to the Doe (so she can protect herself), present evidence to show their case is legitimate, and shown that their need for the information outweighs Doe's right to anonymity.
We're very pleased that the Arizona Court of Appeals affirmed this test and thereby struck the right balance between the competing interests of subpoenaing parties and the anonymous speakers they seek to unmask, recognizing that once an online user's anonymity and privacy have been eviscerated, they cannot be repaired.