Closing The Loop

As the old saying goes, on the internet, no one knows you’re a dog. The adage, coined in 1993 ago by New Yorker cartoonist Peter Steiner, remains as relevant today as it did 25 years ago. Except now, instead of hiding behind CompuServe and AOL usernames while surfing the bitways of the web, more and more people are seeking out communication platforms specifically designed to ensure their anonymity.

Services like Discord and Telegram provide a platform for anonymous online communication—and they have become incredibly popular. The Telegram app, for example, claims 200 million active users a month, with an annual growth rate of 50 percent. Discord, which provides free online chat software, hosts conversations by 130 million users. Only three years old, Discord has seen its user base grow by more than 300 percent year over year.

Some users are drawn to these platforms for their ease of communication or sophisticated encryption. Others turn to the services to ensure their anonymity, to make sure no one knows they’re a dog—at least, that is, until the lawyers get involved.

Like issues around ephemeral messaging and discovery, these anonymous communication sources can pose tricky questions when it comes to the discovery phase of litigation. A lawsuit against organizers of the 2017 “Unite the Right” rally in Charlottesville, Virginia highlights those issues, forcing the court to balance individuals' First Amendment rights to anonymous speech and free association with the tradition of liberal discovery and a party’s need to obtain information potentially relevant to their case.

 

Free Speech, Anonymous Communications, and the Alt Right

Over two days in August 2017, hundreds of far-right activists descended on the college town of Charlottesville as part of the Unite the Right rally. Bringing together a potpourri of alt-right activists, white supremacists, neo-Nazis and others, the rally sought to oppose the removal of Confederate monuments and unify extremist political movements. The rally turned violent as right-wing activists and their protesters clashed, culminating in a state of emergency and the death of three people, including Heather Heyer, a 32-year-old paralegal who was killed when a car drove through a crowd of protesting pedestrians.

Shortly after the events, ten individuals, including three injured in the attack that killed Heyer, brought suit in the Western District of Virginia against organizers and attendees of the rally. The defendants, they alleged, “joined together for the purpose of inciting violence and instilling fear” as part of a conspiracy to commit acts of violence and harassment against the residents of Charlottesville.

Central to their complaint were planning discussions of violence on an alt-right Discord server labeled “Charlottseville 2.0”. Those communications were revealed in a leak published by “Unicorn Riot,” a non-profit media organization, which revealed incendiary messages such as:

  • “I’m ready to crack skulls.”
  • “Don’t carry anything that’s explicitly a weapon.”
  • “If you get PVC get schedule 80 for thicker thumping.”

The plaintiffs subpoenaed Discord for data that was not made public in the leak, including subscriber information and “all documents and communication to, from, or concerning” 49 Discord users. Among those users was one Jane Doe, who went by the user name of “kristall.night,” an allusion to Kristallnacht, a night of organized violence against Jews in Nazi Germany that many historians mark as the beginning of the Holocaust.

Doe brought a motion to quash the subpoena in the Northern District of California, alleging that it violated her First Amendment Rights and the Stored Communications Act.

 

Anonymous Messages and the Stored Communications Act

The Stored Communications Act prohibits any “person or entity providing an electronic communication service to the public” from “knowingly divulge[ing] to any person or entity the contents of a communication while in electronic storage by the service” without lawful consent of either the communication’s sender or recipient. Providers are, however, allowed to disclose records “pertaining to a subscriber to or customer of” their services “to any person other than a governmental entity.”

Doe argued that the plaintiffs’ request for message contents would thus violate the SCA, in that sought messages to and from Doe without her consent. The proper avenue for obtaining such information, Doe maintained, was to serve discovery requests on the users themselves, rather than via a third-party subpoena.

Plaintiffs responded by contending that no permission is needed for information that merely pertains to subscribers but which is not a stored communication and that, since Discord had discontinued Unite the Right’s servers, only Discord has access to the relevant information and communications.

Here, Chief Magistrate Judge Joseph C. Spero agreed with Doe in part.

To the extent that the plaintiffs sought “account information and content of communications to, from, or concerning Doe’s account” and without the consent of Doe or those she communicated with, the subpoena violated the SCA. The court thus quashed the subpoena as to those communications.

However, so far as the plaintiffs sought account information, the subpoena was legally sound. Such information is not protected by the SCA’s consent requirement, the court found. Nor was the request for information overbroad, unduly burdensome, or disproportionate as Doe claimed, as the earlier leak of communications “supports an inference that Doe could be a witness with information relevant to Plaintiffs’ case.”

 

Does the First Amendment Prevent the Discovery of Users’ Identities?

Revealing her identity, Doe asserted, would infringe upon her right to anonymous speech, causing her and other members of the alt right to fear exposure of their political views and, thus, creating a chilling effect on political speech.

Doe also maintained that the plaintiffs would “use the discovery process to ‘out’ members of the ‘alt-right,’”. Thus, discovery into her identity would also offend her right to association because disclosure of membership in far-right political movements would lead members to withdraw from those groups, further chilling their First Amendment rights.

The plaintiffs, in turn, argued that the subpoena infringes no First Amendment rights. Exposure of Doe’s identity and subsequent negative consequences would be prevented by a protective order already in place to stop the release of confidential information. Further, they claimed, Doe presented no evidence that plaintiffs would reveal her identify to the public, or “dox” her.

Asked whether the First Amendment protected users’ anonymity, the court answered yes—but those protections have limits, including a party’s compelling need for discovery.

 

When Disclosure of a Non-Party’s Identity Is Warranted

The First Amendment does not prevent the disclosure of Doe’s identity, the court found. Under the standard laid out in Doe v. 2TheMart.com Inc. and relied upon here, courts must engage in a four-factor balancing test to determine when the disclosure of a non-party’s identity during discovery may outweigh an individual’s First Amendment rights to anonymity. Those factors are:

  • Whether the subpoena was issued in good faith
  • Whether the information sought relates to a core claim or defense
  • Whether that information is directly relevant to those claims or defenses
  • Whether that information is unavailable from another source

Here, each factor weighed in the favor of disclosure.

The court rejected Doe’s claims that the subpoena was a bad-faith "fishing expedition" designed to “destroy the lives” of those allegedly behind the Charlottesville violence. The existing protective order would allow third parties to designate information as confidential, thus preventing the public exposure Doe feared. Meanwhile, information sought related directly to the plaintiffs' claims of an alleged conspiracy. Similarly, testimony and discovery from those involved in planning the rally would be “highly relevant” and would require the disclosure of their identities in order to obtain it. Finally, as Doe and Discord were the only sources of her identifying information, that factor, too supported disclosure.

Similarly, Doe’s right to association did not prevent the disclosure of her identity. Though Doe was able to establish a prima faci case that the revelation of her identity could lead to the withdrawal or discouragement of membership in alt-right groups, those associational interests were not absolute. The plaintiffs’ discovery was rationally related to a compelling interest insomuch as “kristall.night”’s leaked communications indicated that she was a coconspirator in the events at issue. As such, the plaintiffs’ right to discovery into Doe’s identity “outweighs the potential harm to Doe’s right to association,” the court concluded.

 

Testing the First Amendment’s Boundaries

This, of course, isn’t the last First Amendment argument to be fought in this case or the discovery of anonymous communication in litigation generally. As the court noted, the underlying action will likely force the Western District of Virginia to “decide whether the speech at issue is truly political speech, or speech that incited violence and caused physical and emotional injury to Plaintiffs.”

It is a case that will “continue to test the First Amendment’s boundaries,” Judge Spero wrote. But when it comes to discovery of the identities of those behind the previously anonymous communications, First Amendment concerns do not outweigh the plaintiffs' interest in the information.

As anonymous communications continue to grow in popularity, cases such as this, despite the unique circumstances of the Charlottesville violence, may provide important guidance as courts and legal professionals grapple with issues of privacy, free speech, disclosure and, ultimately, the effective administration of justice.

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