Helping Platforms Protect Speech By Avoiding Bogus Subpoenas

from the it's-important dept

We often talk about how protecting online speech requires protecting platforms, like with Section 230 immunity and the safe harbors of the DMCA. But these statutory shields are not the only way law needs to protect platforms in order to make sure the speech they carry is also protected.

Earlier this month, I helped Techdirt's think tank arm, the Copia Institute, file an amicus brief in support of Yelp in a case called Montagna v. Nunis. Like many platforms, Yelp lets people post content anonymously. Often people are only willing to speak when they can do so without revealing who they are (note how many people participate in the comments here without revealing their real names), which is why the right to speak anonymously has been found to be part and parcel of the First Amendment right of free speech . It's also why sites like Yelp let users post anonymously, because often that's the only way they will feel comfortable posting reviews candid enough to be useful to those who depend on sites like Yelp to help them make informed decisions.

But as we also see, people who don't like the things said about them often try to attack their critics, and one way they do this is by trying to strip these speakers of their anonymity. True, sometimes online speech can cross the line and actually be defamatory, in which case being able to discover the identity of the speaker is important. This case in no way prevents legitimately aggrieved plaintiffs from using subpoenas to discover the identity of those whose unlawful speech has injured them to sue them for relief. Unfortunately, however, it is not just people with legitimate claims who are sending subpoenas; in many instances they are being sent by people objecting to speech that is perfectly legal, and that's a problem. Unmasking the speakers behind protected speech not only violates their First Amendment rights to speak anonymously but it also chills the speech the First Amendment is designed to foster generally by making the critical anonymity protection that plenty of legal speech depends on suddenly illusory.

There is a lot that can and should be done to close off this vector of attack on free speech. One important measure is to make sure platforms are able to resist the subpoenas they get demanding they turn over whatever identifying information they have. There are practical reasons why they can't always fight them -- for instance, like DMCA takedown notices, they may simply get too many -- but it is generally in their interest to try to resist illegitimate subpoenas targeting the protected speech posted anonymously on their platforms so that their users will not be scared away from speaking on their sites.

But when Yelp tried to resist the subpoena connected with this case, the court refused to let them stand in to defend the user's speech interest. Worse, it sanctioned(!) Yelp for even trying, thus making platforms' efforts to stand up for their users even more risky and expensive than they already are.

So Yelp appealed, and we filed an amicus brief supporting their effort. Fortunately, earlier this year Glassdoor won an important California State appellate ruling that validated attempts by platforms to quash subpoenas on behalf of their users. That decision discussed why the First Amendment and California State Constitution required platforms to have this ability to quash subpoenas targeting protected speech, and hopefully this particular appeals court will agree with its sister court and make clear that platforms are allowed to fight off subpoenas like this. As we pointed out in our brief, both state and federal law and policy require online speech to be protected, and preventing platforms from resisting subpoenas is out of step with those stated policy goals and constitutional requirements.


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  • identicon
    Anonymous Coward, 26 May 2017 @ 11:07am

    What's the text in question? Cases matter. Did you decide whether it's "legitimate" or "illegitimate" and worth your effort?

    Why don't you agree with the court's decision on this? You raise "legitimate" or "illegitimate" without any cause or giving us the evidence, I guess just expect everyone to see "free speech" and support you.

    Is Yelp a perfect arbiter of "legitimate" or "illegitimate"?

    Does it defend all, or does it only take cases that somehow serve its interests? -- As Facebook wants to host live video of murders.

    And is this, my comment here, going to make it through Techdirt's alleged "moderation"? I never know.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 26 May 2017 @ 11:07am

    What's the text in question? Cases matter. Did you decide whether it's "legitimate" or "illegitimate" and worth your effort?

    Why don't you agree with the court's decision on this? You raise "legitimate" or "illegitimate" without any cause or giving us the evidence, I guess just expect everyone to see "free speech" and support you.

    Is Yelp a perfect arbiter of "legitimate" or "illegitimate"?

    Does it defend all, or does it only take cases that somehow serve its interests? -- As Facebook wants to host live video of murders.

    And is this, my comment here, going to make it through Techdirt's alleged "moderation"? I never know.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 26 May 2017 @ 11:08am

      Re: What's the text in question? Cases matter. Did you decide whether it's "legitimate" or "illegitimate" and worth your effort?

      Answer to my last: NO, it did not! But the "resend" worked this time.

      ELSE I'D BE CENSORED HERE>

      reply to this | link to this | view in chronology ]

      • icon
        Wolfie0827 (profile), 26 May 2017 @ 6:38pm

        Re: Re: What's the text in question? Cases matter. Did you decide whether it's "legitimate" or "illegitimate" and worth your effort?

        No. you are not censored here as you repeatedly claim and is obviously not the case .. hence the replies to your supposedly censored posts. It is just your paranoia and being flagged!

        You fucking idiot!

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 May 2017 @ 11:43am

      Re: What's the text in question? Cases matter. Did you decide whether it's "legitimate" or "illegitimate" and worth your effort?

      You can't tell if the subpoena is illegitimate until you get a chance to resist it, so the idea Mike was explaining above was it COULD be an illigitimate subpoena, and Yelp should be allowed to resist subpoenas due to the first amendment implications in them. Now they might be legitimate, in which case either Yelp does not resist it, or the court states that the subpoena is legitimate.

      It can choose whatever case it wants. The point is it should be allowed to file an objection on behalf of it's anonymous users.

      Also facebook has nothing to do with this. And it doesn't want to do that judging by how it takes them down as fast as possible and is trying to put algorithms in that detect such videos before they go up.

      Techdirt 'moderation' has been explained to you before.

      But hey don't let facts get you down!

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 26 May 2017 @ 11:10am

    Not letting the platforms intervene seems like it places anonymous posters in a catch-22 situation.
    If they want to protect their right to be anonymous, they have to out themselves to the court. They have to invest time and money and those bringing the claim can drop it at the first hint of the name, leaving them holding the bag.

    Of course much of this could be solved by establishing a threshold plaintiffs have to meet before they can proceed.

    We can't count on lawyers to stop a clients mad plans, so the court should.

    Having to submit the alleged defamatory statement & proof its defamatory to the court would be a good start.

    But then what do I know, Pretenda sued to try and unmask myself & others for causing them butthurt. They said I was a bad man, I'd like to point out I've never been indicted.

    reply to this | link to this | view in chronology ]

  • icon
    afn29129 (profile), 26 May 2017 @ 11:55am

    True anonymity.

    True anonymity. Don't trust any platform to offer you true anonymity. Yelp, Facebook, Twitter, etc.

    reply to this | link to this | view in chronology ]

    • icon
      Cdaragorn (profile), 26 May 2017 @ 2:53pm

      Re: True anonymity.

      I'm not sure what you're trying to say. You certainly should not expect anything you do online to remain hidden from discovery forever. Courts can under the right circumstances require the service provider to reveal what they know about who made those comments. That's a good thing.

      It sounds like you're trying to attack these service providers as if they are lying about providing anonymity. If that's the case, you need to re-read the article. Yelp is trying to fight to protect this anonymity. They're hardly the bad player in this scenario.

      reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 26 May 2017 @ 5:04pm

    Subpoenas represent a balance

    They exist in a balance between constitutional rights and government interests. By destroying that balance, by denying the recipient of a subpoena that standing to challenge it, that subpoena is rendered inherently unconstitutional.

    Ignoring a subpoena may be illegal, but issuing an improper one is a felony under federal law.

    reply to this | link to this | view in chronology ]

  • identicon
    Wendy Cockcroft, 31 May 2017 @ 5:52am

    Defamation on review sites

    Yelp are actually pretty good at taking down bogus content as long as you are able to prove it's bogus. All they ask is that you state your case clearly with evidence. They then check it out and if they're satisfied, down it goes.

    This is in their best interests as it's impossible to make an informed choice if the "information" is from trolls or trouble-makers and they're claiming to be accurate.

    Suing for defamation is expensive and ideally a last resort. As I've said any number of times, when people make allegations about you online it makes their audience curious; they check you out to find out if they're true or not. You can see this in the ever-changing search results which sort themselves according to what people choose to read. Therefore if you find yourself at the centre of false allegations, stay calm, post a rebuttal, and contact the platform involved to state your case. If it's one of those that leaves the allegations up, at least your rebuttal is there. Meanwhile, be careful not to be drawn into flame wars or anything like that; conduct yourself with dignity if you want to be seen as the innocent party. Remember, your general conduct online should reflect the image you want people to have of you so when they check you out that's what they find. Drama trolls are a problem but you can beat them. I did.

    reply to this | link to this | view in chronology ]


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