Some Thoughts On Gag Rules And Government Unmasking Demands

from the dissent-dies-in-the-dark dept

The news about the DOJ trying to subpoena Twitter calls to mind an another egregious example of the government trying to unmask an anonymous speaker earlier this year. Remember when the federal government tried to compel Twitter to divulge the identity of a user who had been critical of the Trump administration? This incident was troubling enough on its face: there’s no place in a free society for a government to come after a critic of it. But largely overlooked in the worthy outrage over the bald-faced attempt to punish a dissenting voice was the government’s simultaneous attempt to prevent Twitter from telling anyone that the government was demanding this information. Because Twitter refused to comply with that demand, the affected user was able to get counsel and the world was able to know how the government was abusing its authority. As the saying goes, sunlight is the best disinfectant, and by shining a light on the government's abusive behavior it was able to be stopped.

That storm may have blown over, but the general issues raised by the incident continue to affect Internet platforms – and by extension their users and their speech. A significant problem we keep having to contend with is not only what happens when the government demands information about users from platforms, but what happens when it then compels the same platforms to keep those demands a secret. These secrecy demands are often called different things and are born from separate statutory mechanisms, but they all boil down to being some form of gag over the platform’s ability to speak, with the same equally troubling implications. We've talked before about how important it is that platforms be able to protect their users' right to speak anonymously. That right is part and parcel of the First Amendment because there are many people who would not be able to speak if they were forced to reveal their identities in order to do so. Public discourse, and the benefit the public gets from it, would then suffer in the absence of their contributions. But it's one thing to say that people have the right to speak anonymously; it's another to make that right meaningful. If civil plaintiffs, or, worse, the government, can too easily force anonymous speakers to be unmasked then the right to speak anonymously will only be illusory. For it to be something speakers can depend on to enable them to speak freely there have to be effective barriers preventing that anonymity from too casually being stripped by unjust demands.

One key way to prevent illegitimate unmasking demands is to fight back against them. But no one can fight back against what they are unaware of. Platforms are thus increasingly pushing back against the gags preventing them from disclosing that they have received discovery demands as a way to protect their communities of users.

While each type of demand varies in its particulars (for instance a civil subpoena is different from a grand jury subpoena, which is different than an NSL, which is different from the 19 USC Section 1509 summons that was used against Twitter in the quest to discover the Trump critic), as well as the rationale for why the demanding party might have sought to preserve the secrecy around the demand with some sort of gag, all of these unmasking demands still ultimately challenge the durability of an online speaker's right to remain anonymous. Which is why rulings that preserve, or, worse, even strengthen, gag rules are so troubling because they make it all the more difficult, if not outright impossible, to protect legitimate speech from illegitimate unmasking demands.

And that matters. Returning to the example about the fishing expedition to unmask a critic, while it's great that in this particular case the government quickly dropped its demand on Twitter, questions remain. Was Twitter the only platform the government went after? Perhaps, but how would we know? How would we know if this was the only speech it had chosen to investigate, or the 1509 summons the only unmasking instrument it had used to try to identify the speaker? If the other platforms it demanded information from were, quite reasonably, cowed by an accompanying demand for secrecy (the sanctions for violating such an order can be serious), we might never know the answers to these questions. The government could be continuing its attacks on its apparently no-longer-anonymous critics unabated, and speakers who depended on anonymity would unknowingly be putting themselves at risk when they continued to speak.

This state of affairs is an affront to the First Amendment. The First Amendment was intended in large part to enable people to speak truth to power, but when we make it too hard for platforms to be partners in protecting that right it entrenches that power. There are a lot of ways that platforms should have the ability to be that partner, but one of them must be the basic ability to tell us when that right is under threat.

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  • This comment has been flagged by the community. Click here to show it
    Anonymous Coward, 3 Nov 2017 @ 1:42pm

    And yet you maintain that Twitter can arbitrarily deny access!

    First, no corporation is "partner" with "natural" persons. You have imaginary friends, there. Corporations are sheerly fictions to "legalize" gaining money without personal responsibility. They'll sell you for dog food soon as "legalized".

    So long as you maintain the utterly contradictory notion that corporations can withhold use of their "platform" without a good cause under common law, then this is again just public relations lies, to actually empower corporations to act against the public.

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

    • identicon
      Anonymous Coward, 3 Nov 2017 @ 2:22pm


      > And yet you maintain that Twitter can arbitrarily deny access!

      Twitter's platform belongs to Twitter. You use it for free and at their discretion. Just like this site. Neither is under any obligation whatsoever to provide you a place to vent your drivel and may revoke your ability to do so at any time for any reason, 1st Amendment notwithstanding. What part of that is hard for you to understand?

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

    • identicon
      Anonymous Coward, 3 Nov 2017 @ 2:52pm


      No shirt
      No shoes
      No service

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

  • identicon
    Anonymous Coward, 3 Nov 2017 @ 1:47pm

    Twitter has no interest in fighting for speech it cannot monetize.

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

  • icon
    Uriel-238 (profile), 3 Nov 2017 @ 2:46pm

    Secrets should be regarded as malicious until proven otherwise.

    This is a lesson we should have learned during the Civil Rights era when Hoover's FBI freely harassed civil rights activists and other subversive thinkers. With rare exception, anytime information is suppressed or classified, it far more likely closed to cover wrongdoing than operational details. (And generally operational details are only usefully secret for short periods.)

    There should be no valid cause for gag orders from the department of justice. And the public would be better served if kaw enforcement simply learned to operate without obscurity.

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

  • identicon
    Capet, 3 Nov 2017 @ 3:06pm

    Federal affronts

    "This state of affairs is an affront to the First Amendment."

    ... and just which amendments in the Bill of Rights does our Federal Government strictly adhere to ... and vigorously defend ??

    Answer: None

    Your Federal Government simply ignores the Bill of Rights (and Constitution) when convenient or formally interprets it to government advantage against the plain text of the document, when pressed.

    That 1st Amendment stuff is trivial in the broad view of current Federal malfeasance. Getting the Feds to obey any restrictions set upon them is your real problem. Voting & elections just feed the beast, no matter who takes office.

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

  • identicon
    oliver, 4 Nov 2017 @ 3:13am

    This is another reason for using anonymous, throw-away email acounts for registration on social media sites.
    You'r all welcome!

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

  • identicon
    Tracie, 14 Nov 2017 @ 7:13am

    DOJ subpoena Twitter users

    Why would the DOJ need the users Twitter information anyway for this case? It all doesnt make sense.

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

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