California Proposition Outlawing Anonymous Internet Usage For Broadly Defined 'Sex Offenders' Passes

from the too-extreme dept

Yesterday, we wrote about a questionable ballot measure in California that, in an attempt to create harsher penalties for human trafficking, also included numerous problematic components, including banning anonymous speech for anyone on the sex offenders list -- which you can get on for a very broad list of offenses, many of which the public does not associate with being a "sex offender." As we noted, since the core argument in favor of the proposition is such an emotional item, and is well-intentioned, it was likely that the measure would pass -- and it did, with 80% of the vote. Unfortunately, you can now expect the internet provision to be abused -- and likely challenged in court, leading to a wasteful legal fight spending California taxpayer dollars to defend an almost certainly unconstitutional provision. Wouldn't it be nice if we could focus on actual problems instead of lumping in all sorts of other things?

Filed Under: anonymous speech, california, free speech, sex offenders

Judge In Grooveshark Lawsuit Orders Blog To 'Preserve' Logs That Had Already Been Deleted

from the dangerous-ruling dept

Earlier this month, we noted a problematic attempt by Grooveshark's parent company, Escape Media, to subpoena information on an anonymous commenter on the blog site Digital Music News. As we noted at the time, Universal Music had referenced that comment in its lawsuit against Grooveshark. It seemed bizarre to reference an anonymous comment, especially one that seemed like pure hearsay (it made claims about things Grooveshark employees had done). In the lawsuit between UMG and Grooveshark it seemed completely pointless (and, indeed, Grooveshark has been arguing as much in that particular lawsuit). Yet, at the same time, Grooveshark subpoenaed DMN in an attempt to find out who posted that comment. DMN resisted the subpoena, noting that it discards and overwrites its log files every few days anyway, and these files had been long gone already. It also pointed to California's shield law for journalists and the basic First Amendment protections for anonymous speech.

Unfortunately, the judge has ruled against Digital Music News, and ordered it to produce the information. The judge has indicated that he will not require this information during the appeal that DMN's lawyer indicated they would file... but did require "preservation" of the evidence during that time. Beyond the shield law and First Amendment issues raised here (we'll get to those), this raises a very, very troubling proposition for any website that regularly overwrites its log files. Escape Media had argued that even if DMN overwrote the log files, it should be required to hand over the information on the subpoena just in case the overwritten data was still available and could be recovered.

So, what do you do in this situation? Under the judge's order to "preserve" data that has already been deleted, what is a site to do? Do they have to immediately stop using their existing hardware and set up an entire clone -- hanging onto all of the original hardware for who knows how long, just in case a forensics expert can find a tiny piece of (useless for this case anyway) data that has been overwritten probably a hundred times already? That seems crazy. Paul Levy, from Public Citizen, who is representing DMN on this issue, highlighted many of the issues in his blog post about this:

The imposition of data preservation requirements on a journalist who is not a party to the litigation raises questions apart from the merits of the order. Journalists need to be able to discard data when they no longer have any of their own use for it.  Yes, “the public has a claim to every man’s evidence,” but don’t members of the public who are not involved in litigation have the right to discard information despite the fact that it might turn out to be useful evidence for somebody else’s case?  Does the public have a claim to heroic efforts on every man’s part?  Shouldn’t there be higher standards for subpoenas demanding intrusive searches for discarded data in the hands of third parties?

The problem is compounded when it is a journalist that has been subpoenaed.  To what extent does society have any entitlement to make journalists in particular take heroic measures, such as searching the nooks and crannies of their computer equipment for fragments of discarded data?  The judge was sensitive to the fact that our client here is a journalist, telling Escape Media that he was not prepared to allow it to make any general search of Digital Music News’ computers.  But an issue that we may have to pursue on appeal is whether a journalist should ever have to undertake such drastic preservation efforts in aid of a lawsuit in which he is not involved, particularly given the relative unlikelihood that fragments of identifying data remain on his computers somewhere.

Indeed, the problem is broader than just journalists.  Companies often keep log files with respect to server visits (and hosted comments), but there is little business justification for keeping those logs forever; so generally speaking they are discarded after a period of time (EFF's best practices recommendations are worth a look in this regard).  Does the mere act of discarding log files set a company up for the possibility of a demand for forensic examination of the underlying servers, in the hope that some fragment of the data might be recovered?  In this regard, the trial court's order has chilling implications for other California companies, even beyond the issue of journalists. 

Issues of how to preserve the data remain to be decided.  This is not like just leaving one of your file cabinets untouched for a period of time; it is not even as easy as making sure you don't delete any of your email.  Preserving the web site while creating a copy of the underlying servers is a complicated process, requiring the services of a forensic specialist, and the cost could be substantial.  The estimates that we have been given are well into the five figures; but even the cost of several thousand dollars would be an enormous imposition on this small company.

It really is quite a difficult issue, and if the ruling stands, could become a massive headache for any company in California.

Separately, we should not ignore the First Amendment and shield law issues. DMN is not a party in this case, and it's not even clear why this information is needed. Escape/Grooveshark can and should point out that the information contained in the comment is pure hearsay so it shouldn't have to deal with it in the original case. The company has not filed a defamation claim against the commenter and does not appear to have met the high bar required to unveil an anonymous commenter anyway. This is a pretty big concern for any journalist or blogger out there. Being dragged into a third party dispute because someone comments on your site can represent a pretty big problem for a lot of smaller sites.

While Grooveshark's legal fight against the major labels certainly raises some interesting copyright questions, it's disappointing to see them going down this path and potentially creating serious problems not just for Digital Music News, but tons of journalists and websites.

Filed Under: anonymous speech, evidence, first amendment, log files, subpoena
Companies: digital music news, grooveshark, universal music

Indiana Court Says Anonymous Commenters Deserve High Standard Before Being Exposed, But Aren't Necessarily Protected By Shield Laws

from the seems-reasonable dept

A few months ago, we wrote about a case in Indiana involving an attempt to unmask an anonymous commenter on a newspaper website who effectively accused someone of embezzlement. There were a few legal questions involved in the case, and the one we had focused on involved the newspaper itself trying to protect that commenter under Indiana Journalism shield laws. At the time, we'd argued that the shield law should probably be limited to cases where the individuals actually were acting as a source... and that basic First Amendment case law could handle the anonymity question outside of the shield law.

It looks like the court effectively agreed with just about everything we said. The court rejected the shield law argument, but not in a broad way saying that commenters aren't protected under the shield, but that this comment wasn't really a "source" in any meaningful way, and the newspaper didn't use the comment as the basis for any additional reporting. However, the court pretty clearly suggests that in other cases, commenters could be considered sources and could be protected by shield laws.

However, perhaps more importantly, the court set a relatively high bar for unveiling the anonymous commenter -- adopting the Dendrite rules that give the anonymous person a chance to respond and which require the plaintiff to present a significant amount of evidence that the comments violate the law before any unmasking is ordered. While the Dendrite rule still is not standard, it is spreading, and it's nice to see Indiana adopt it as well.

Filed Under: anonymous speech, commenters, dendrite rules, indiana, journalism, shield laws