An Obscure Federal Law is Threatening Our Right to Anonymous Online Speech
One of the most important First Amendment protections in the digital age is the right to speak anonymously online. This right protects advocacy and dissent, encourages a rich and diverse exchange of ideas, and allows people to criticize the powerful without fearing retaliation. Without it, many would be hesitant to fully participate in our democracy or even share feedback about services, products, and employers.
However, our right to speak anonymously, long protected by U.S. courts, is increasingly under attack by corporations and wealthy individuals looking to upend decades of free speech precedent.
An alarming example of this trend recently came to our attention when an anonymous speaker contacted us earlier this year. That person – who we called “Doe” – had criticized an American pharmaceuticals magnate named Fredric Eshelman, calling him a “piece of shit” for supporting the “Stop the Steal” movement and for blocking hunters from crossing the corners of his expansive ranch to access public land. In response, Eshelman said he intended to sue Doe abroad and sought to force Google to reveal Doe’s identity using an obscure federal statute called Section 1782—a law designed to help parties and courts in other countries obtain documents from the U.S. Recognizing the issues at stake, we immediately stepped in to represent Doe.
In a matter of days, we filed a motion to quash Eshelman’s subpoena on Doe’s behalf with co-counsel Public Citizen. We argued that our client’s identity should not be revealed because their speech was an opinion clearly protected by the First Amendment, that Section 1782 did not apply and that Eshelman had misused it to target a critic (who happened to be an American) for their critical opinion. In a victory for free speech, Eshelman quietly abandoned his lawsuit.
Eshelman’s actions were retaliatory and a textbook example of rich and powerful people leveraging their formidable resources to intimidate their critics into silence. Unfortunately, Eshelman isn’t alone in trying to use Section 1782 to short-circuit long-standing protections for free speech. Individuals and corporations based abroad have already succeeded at using this law in U.S. courts to force U.S-based technology platforms to help unmask anonymous online critics. For example, a Canadian doctor was able to obtain the identities of several individuals who had left him negative reviews on RateMDs.com. Similarly, a Japanese restaurant used Section 1782 to learn the identity of a person who had posted a one-star review on Google Maps.
These speakers and their identities would be protected if they originated in the U.S., where courts normally require plaintiffs to prove some of their case before they can learn the identity of anonymous speakers. But by pointing to Section 1782 and the possibility of a foreign lawsuit, individuals and companies are evading those free speech protections and forcing U.S. platforms to unmask speakers. If this loophole is not closed, this trend will continue to grow, raising the risk more people will threatened or intimidated for speaking their minds online.
Soon after we shut down Eshelman’s attempt to harass our client, we weighed in on the larger legal issue in a Section 1782 case brought by a company abroad against an anonymous online speaker. In that case, hey inc., v. Twitter, the ACLU of Northern California filed an amicus brief explaining that since online speech has global reach, litigants can easily abuse Section 1782 by threatening suit against speakers in countries with weaker speech laws where the online posts are visible, using the statute’s focus on foreign litigation to avoid the typical U.S. free speech protections. We argued these longstanding free speech protections should apply to any attempts to unmask anonymous speakers on U.S.-based platforms using U.S. courts, regardless of location. We pointed out that doing so would vindicate the free speech rights and interests of the U.S.-based audiences, the U.S-based platforms hosting the speech, and the U.S. courts charged with upholding the Constitution.
Twitter, now known as X. Corp., was clearly paying attention. Shortly after we filed our brief, the company filed their own, echoing many of our arguments and our call to defend the rights of anonymous speakers. It is good to see X standing up for free speech in this case and we urge the company to do so going forward. But regardless of what companies do, the ACLU of Northern California will continue watching this issue and fighting for your right to speak freely online.
