Privacy SOS

MA judge: no right to anonymous speech online

The government can very easily access our private data when it is held by third parties like Twitter, Google, Facebook or Verizon, and unless we act to change the law, we might not have the right to challenge any disclosures in open court.

That's the take-away from a superior court’s ruling in our Twitter subpoena case related to the identity of @p0isAn0N, whose personally identifiable information was sought by a Suffolk county district attorney here in Boston.

A judge denied our motion to quash the subpoena on the grounds that our client, the target of the subpoena, lacked standing to challenge it in court. Even though the district attorney's office can use information gleaned from the subpoena to expose @p0isAn0N's identity, the court agreed with the government: since Twitter holds the records in question, only Twitter can fight the subpoena in court.

Therefore Twitter was compelled to turn over the requested records sometime yesterday.

A legal mess

Even though many courts around the country have agreed that we have a First Amendment right to anonymous speech on the internet, the superior court in this case ruled that our client had no right to challenge a subpoena that threatened his anonymous speech.

According to the court, you must be the owner of the internet service you used to put content on the internet if you want access to the court to defend your right to engage in anonymous speech online. Given that hardly anyone starts their own server, email system, or social networking service, this effectively means that no one has the ability to challenge a law enforcement request for our personal, private information.

The court short-circuited our First Amendment claim, essentially concluding that because the subpoena sought items in Twitter's possession, our client didn't have a right to interfere. Had the judge considered our First Amendment argument — that allowing the subpoena to proceed would unmask him and therefore eliminate his ability to speak anonymously online as @p0isAn0N — things might have been different. 

Bad statutes enable fishing expedition "investigations"

Laws like "Jessica's Law" in Massachusetts and the Patriot Act on the federal level allow prosecutors to file routine subpoenas for access to our information, skirting rules for grand jury investigations and bypassing judicial oversight. Jessica's Law was passed in 2008 here in Massachusetts; when pushing for the law, prosecutors and police argued that it was a necessary tool in the fight against sexual predators who go after children online.

But four years later, how has the law been used? In broad fishing expeditions like that targeting our client, @p0isAn0N, possibly motivated by political speech and (legal if unpopular) political action?

The context that allowed for today's ruling is colored by two major problems: the third party doctrine and unchecked subpoena power.

To address the first problem, we need to update the Stored Communications Act, which allows prosecutors to bypass us, the targets of their investigations, and go straight to the holders of our content, the "third party providers." This framework enables decisions like today's, in which our client was told that he or she did not have standing to bring a motion to quash a subpoena for his or her records before the court. 

To fix the second problem, we need to abolish or alter the Patriot Act and state administrative subpoena statutes, which allow prosecutors to file subpoenas willy nilly and without proper oversight, scope, or transparency.

The government shouldn't simply be allowed to scribble something on a sheet of paper, send it over to Google, and gain access to your intimate records, while you are barred from a courtroom to challenge the legitimacy of the subpoena or investigation.

Prosecutors and police don't need to conduct fishing expeditions in order to do their jobs. It is an invitation for abuse, politically motivated invasions of our privacy, and time wasting investigations leading to dead ends.

Worse still, they grant the government the ability to spy on all of us without due process or reasonable suspicion. Join us to work to fix that.

Read about the background of this case, including the prosecutor's attempt to keep the proceedings and the judge's decision secret from the public here, here and here.

© 2021 ACLU of Massachusetts.