Note: The post was co-authored by EFF legal intern Janelle Robins
In a victory for online expression, a U.S. District Court judge has quashed a subpoena aimed at revealing the identity of an anonymous person who simply hosted a website.
The background facts tell a too-familiar tale in the age of social media: a New Jersey man was fired from his job after an anti-fascist Twitter account suggested he was involved with a white supremacist organization. He and several others targeted by the Twitter account responded by suing everyone they claimed were even vaguely connected to the doxxing, including Torch Antifa, a network of antifascist activists. Those conspiracy claims were dismissed, but he nevertheless issued a subpoena to Cloudflare seeking the identity of a web host whose only relation to the case was that they had previously hosted Torch Antifa’s website.
EFF moved to quash the subpoena on behalf of that host, explaining that the proposed order violated Doe’s First Amendment rights to anonymity and free association, as well as their privacy interests. A legitimately harmed person can, in some instances, pierce a Doe’s anonymity. But they must show why it is justified, especially when the Doe is a third-party to the lawsuit. Given that the conspiracy charge was dismissed, there was no way the Plaintiff could meet that standard.
EFF has been working for decades in similar cases because we know that people with widely varying goals and interests rely on First Amendment protections to freely associate, advocate, and seek out information. In the digital era, where third-party service providers play a pivotal role in hosting content, the First Amendment’s safeguard of a service provider’s right to make anonymous decisions about whose speech they will disseminate is particularly crucial. Unfortunately, legal process can be exploited to uncover the identities of these providers in order to harass, intimidate, or silence them. That risk was clear here, where EFF’s client had reason to fear retaliation given that the person seeking their identity had been publicly associated with a white supremacist organization.
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