Cindy Cohn is executive director of the Electronic Frontier Foundation, and the latest contributor to a Knight Foundation series on the First Amendment. Knight recently announced the launch of the Knight First Amendment Institute at Columbia University to promote free expression in the digital age and will feature columns throughout the year on First Amendment issues.
In our increasing digital world, there are new challenges to free expression every day. At the Electronic Frontier Foundation our mission is to be on the front lines, battling these emerging threats before permanent erosion sets in. Right now, we are keeping a close watch on the want-to-be censors’ latest trick: so-called “John Doe” injunctions and orders to get speech they don’t like removed from the internet entirely.
With a “John Doe” order, the person who is accused of wrongdoing is unknown and, therefore, unnamed. So often the defendant doesn’t even know they are involved in a lawsuit. That means that in many of these cases, there is no one to challenge the plaintiff’s claims to a judge, leading to outrageous outcomes. These injunctions are especially dangerous when they order the removal of content from the internet.
For example, EFF represents an online newspaper called Respublika, which is often critical of the government of Kazakhstan. When a bunch of embarrassing emails leaked from the Kazakhstan government, the government filed multiple cases against the unnamed “hackers” in the U.S. courts. Through one of these lawsuits, Kazakhstan obtained a John Doe injunction forbidding “Defendants, their affiliates and all persons acting in concert with them from using, disclosing, or otherwise disseminating” the “hacked” emails.
Armed with this injunction, the Kazakhstan government began a campaign to convince web hosts to remove news articles referencing the embarrassing emails from the internet. Kazakhstan presented its censorship demands to Respublika’s web host and to Facebook. And the threats worked, in part. The web host threatened to de-index Respublika unless it removed the articles. Happily, Facebook recognized that the orders weren’t applicable and even stood up against them.
But to fight the order to the web host and others, Respublika reached out to us. We went to court on the journalists’ behalf, obtaining a clarified injunction specifying that it did not apply to Respublika or to anyone else that Kazakhstan could not prove violated the law. The efforts by Kazakhstan are ongoing, however. The court still allowed Kazakhstan to try to prove that Respublika was directly involved in the hacking—so in addition to fighting off subpoenas to its domain registrar and Facebook, its publisher had to undergo a deposition by Kazakhstan.
In a second example, a plaintiff called Madwire Media filed a defamation suit against John Does in response to negative consumer reviews. They filed in Leon County, Florida, where neither the plaintiff nor any of the likely defendants lived, and instead where the plaintiffs’ lawyers were based. But because the process was one-sided, there was no one to point out that the court likely had no jurisdiction to hear the case. Madwire Media then obtained a default judgment against the Does, which included a shockingly misguided authorization from the court: approval to show the order to search engines so that the posts could be de-indexed or removed. Madwire did show the order to Google, which rightly took no action. But at least one web host unpublished a website, removing constitutionally protected speech from the internet.
In both of these situations, the plaintiffs took advantage of the Doe procedures allowing them to appear in court unopposed. With no defendants fighting back, they extracted unconstitutional orders from the court, which these censors then used to demand that material they didn’t like be taken offline entirely. Less-savvy web hosts, or those who cannot afford a set of lawyers to challenge requests, are especially susceptible to such pressure, and sadly, these smaller or less-savvy web hosts are often the only option for some online activists. But our First Amendment rights don’t only apply to those who can pay for legal services or know about nonprofits like EFF.
This isn’t the only way that thin-skinned litigants have abused “John Doe” orders and injunctions. The first Doe cases we saw at EFF focused on unmasking online speakers who wanted to remain anonymous. A person who was unhappy about something said online, but didn’t know the name of the speaker, brought suit against a Doe or just using someone’s screen name, like “Pizzalover99.” The litigant then tried to identify the commenter through discovery to the website host or the internet service provider. Because many of these cases involve attempts to intimidate or harass critics and deter protected speech, EFF, Public Citizen, the American Civil Liberties Union and others got involved. Over time, a series of legal tests, some more stringent than others, were developed so that the First Amendment rights of anonymous speakers were properly accounted for. In a more recent case, we helped push back against a Doe-like censorship order served on an extremely upstream company, CloudFlare, which protects websites by serving as a content delivery network (CDN) and a reverse proxy.
Given the risk of abuse and the chilling effects of this new censorship misuse of John Doe cases, we don’t just need a legal test, we need a bright line rule: Speech injunctions should never issue against unnamed persons. Until a plaintiff can identify a specific wrongdoer, they should not be empowered to censor speech either directly or up the chain of service providers. This is especially the case if the material at issue has already been made public at the time of the request, as it was in Respublika. Courts also must ensure that the defendants can defend themselves. Due process requires the court to carefully consider whether it has jurisdiction before ruling, and this requirement becomes even more important when there is only one party before the court and there is a good chance, as there often is in internet cases, that the defendant is far away.
But if the courts don’t step up, those facing this censorship can get help from EFF and others. While being censored is no fun, it is possible to challenge these orders after the fact to get them dissolved. We’re also working on ways to educate web hosts and others not to just blindly censor in response to Doe orders. And we’d like to develop the law so that the audience can also raise their concerns. After all, the First Amendment is ultimately about readers and listeners as well as speakers, and censorship hurts both sides. We can’t let evolving technologies—and clever censors looking for loopholes—curtail our digital rights.
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