The Sinister Legal Threat to Online Commenters

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A woman types on a laptop computer, June 8, 2013. After being served with a subpoena for information about the anonymous commenters on a post on Reason.com, the site's founder worries about the "chilling effect" such legal action has on users' First Amendment rights. Dominic Lipinski/PA Wire/AP

For part of June, Reason, a magazine dedicated to "Free Minds and Free Markets," was barred by an order from the U.S. District Court for the Southern District of New York from speaking publicly about a grand jury subpoena that court sent to Reason.com.

The subpoena demanded the records of six people who left hyperbolic comments at the website about the federal judge who oversaw the controversial conviction of Silk Road founder Ross Ulbricht. Shortly after the subpoena was issued, the government issued a gag order prohibiting Reason not only from discussing the matter but even acknowledging the existence of the subpoena or the gag order itself.

As a wide variety of media outlets have noted, such actions on the part of the government are not only fundamentally misguided and misdirected, they have a tangible chilling effect on free expression by commenters and publications alike.

On June 18, after preparing an extensive legal brief, Reason asked the U.S. Attorney's Office to join with it in asking that the gag order—now moot and clearly an unconstitutional prior restraint—be lifted. The following morning, the U.S. Attorney's Office asked the Court to vacate the order, which it did. We are now free to tell the story.

On May 31, Nick Gillespie published a post at Reason.com's Hit & Run blog discussing Silk Road founder Ross Ulbricht's "haunting sentencing letter" to District Court Judge Katherine Forrest, and the judge's harsh response. Gillespie noted that Forrest "more than threw the book" at Ulbricht by giving him a life sentence, which was a punishment "beyond even what prosecutors ... asked for."

In the comments section of the post, six readers published reactions that drew the investigative ire of the U.S. Attorney's Office for the Southern District of New York. In a federal grand jury subpoena dated June 2, the U.S. District Court commanded Reason.com to turn over "any and all identifying information" we had about the individuals posting those comments.

This is the first time Reason.com has received such a subpoena from any arm of government.

From press accounts of similar actions at other news publications and social media sites, we know that it is increasingly common for the federal government to demand user information from publications and websites while also stifling their speech rights with gag orders and letters requesting "voluntary" confidentiality. Exactly how common is anyone's guess; we are currently investigating just how widespread the practice may be.

The federal government's command for information—and request for silence—ironically came just days after the Supreme Court, in Elonis v. United States, strongly limited the scope of what counts as a true "threat" online. In that case, the Court voided the conviction of Anthony Elonis, who had published on Facebook rap lyrics depicting violence against his estranged wife and as a result been sentenced to 44 months in prison for making threats.

The Court ruled that context needs to be taken into account when evaluating the true nature of the threatening actions being described. "Federal criminal liability," the justices wrote, "generally does not turn solely on the results of an act without considering the defendant's mental state."

Unfortunately, that precedent is mostly irrelevant in our case. In America, grand juries have almost limitless ability to investigate whatever they want, regardless of whether that investigation has any chance of producing a constitutionally permissible conviction. Grand juries are widely regarded as playthings of ambitious prosecutors, who famously are able to indict "ham sandwiches"—at least, as long as those sandwiches aren't police officers accused of brutality.

U.S. Attorney Preet Bharara subpoenaed all of the identifying information we had about the authors of such comments as, "Its (sic) judges like these that should be taken out back and shot." And, "Why waste ammunition? Wood chippers get the message across clearly. Especially if you feed them in feet first." This last comment is a well-known Internet reference to the Coen brothers' movie Fargo.

The subpoena also covered such obviously harmless comments as: "I hope there is a special place in hell reserved for that horrible woman," and "I'd prefer a hellish place on Earth be reserved for her as well."

The comments are hyperbolic, in questionable taste—and fully within the norms of Internet commentary.

It's worth stressing that, under established legal precedent, Reason.com (like any other website) is generally not legally responsible for reader comments posted at our site. Still, the chilling effect on Reason and our commenters is tangible. It takes time, money and resources to challenge, or even simply to comply with, such intrusive demands.

The original subpoena, received late on Tuesday, June 2, did not come with a gag order. However, it came with a letter from Bharara and Assistant U.S. Attorney Niketh Velamoor requesting that we refrain from informing any other parties about the subpoena so as to "preserve the confidentiality of the investigation," and that we notify his office in advance if we intended to do so, even though it also said that we were under "no obligation" to keep the subpoena confidential.

We had three options: We could 1) abide quietly with the subpoena, 2) attempt to quash it, and/or 3) alert the commenters named in the subpoena.

Option 1, quietly abiding, was a non-starter for us.

As for Option 2, our chances of prevailing in that sort of legal challenge—given the extremely wide-ranging authority of federal grand juries, and the precedents set in cases such as In re Grand Jury Subpoena No. 11116275, 846 F. Supp. 2d 1 (D.D.C. 2012), involving an anonymous poster on Twitter—was, in practical effect, virtually nil.

In the Twitter case, an anonymous poster moved to quash a grand jury subpoena to Twitter that arose from online postings of a sexual nature about then-congresswoman Michele Bachmann. In that case, Twitter received the subpoena and notified the anonymous poster about it, letting him know that the company would comply with the subpoena unless he filed a motion to quash. The court denied his motion, holding that the poster's First Amendment right to comment anonymously must yield to the government's "compelling interest" in knowing his identity.

So we decided, against the government's request but well within our legal rights, to choose Option 3: notify and share the full subpoena with the six targeted commenters so that they would have a chance to assert their First Amendment rights to anonymity and defend themselves legally against the order.

At about 10:30 a.m. ET on Thursday, June 4, our attorney Gayle Sproul (of Levine, Sullivan, Koch, & Schulz) called Velamoor to discuss the subpoena. The call did not go well. Sproul asked Velamoor to consider scaling back the scope of the subpoena by omitting the more benign commenters. Velamoor said simply, "No."

Then Sproul informed him that we would be notifying our commenters about the subpoena to give them the chance to defend their rights to remain anonymous, and that we would not comply with the subpoena as it related to any commenters who moved to quash the subpoena before our compliance deadline. Sproul explained to him that there is case law firmly establishing that these commenters have the right to speak anonymously, and that we would withhold the information of anyone fighting the subpoena.

Velamoor disputed that any such free speech rights exist. He asked that we delay notifying the commenters so he could get a court order prohibiting us from disclosing the subpoena to them. We refused.

Sproul pointed out that we were perfectly within our rights to share the subpoena given the law and the wording of his own letter. Velamoor then suggested that Reason was "coming close" to interfering with the grand jury investigation. The call ended abruptly.

Immediately following that conversation (at about 11 a.m. ET on June 4), Reason Publisher Mike Alissi sent the subpoena to the six email addresses associated with the user accounts for the comments identified in the subpoena. The email stated:

I am unhappy to report that Reason has received the attached grand jury subpoena from the US District Court/Southern District of New York demanding that we provide all identifying information that we have for several commenters who posted comments in a recent Reason.com thread about the Silk Road case. I am writing you because your email address is associated with one or more of the comments at issue.

Please be aware that we must provide the information that is being demanded by June 9 at 10 am eastern. Please let us know no later than Monday, June 8 at 5 pm eastern if you have filed any motion(s) with the Court opposing the grand jury subpoena. Our attorney has notified the US Attorney's Office that we are notifying you about this subpoena.

Later that day, at approximately 5:35 p.m. ET, Velamoor sent Reason a gag order he had later secured blocking us from discussing the subpoena or the order itself with anyone outside of Reason, other than our attorney.

The gag order was accompanied by this email:

Mr. Alissi,

Regarding this subpoena, I spoke to someone who said she was an attorney representing Reason in connection with this subpoena. The attorney indicated that Reason intended to notify the individuals referenced therein about the subpoena. The attorney further refused to provide me any time to take steps to protect the confidentiality of the investigation.

I have obtained the attached Court Order prohibiting Reason from notifying any third party about the subpoena.

Please forward the Order to the attorney and any other individuals who should be aware of it.

Thank you
Niketh V. Velamoor
Assistant United States Attorney
Southern District of New York
One Saint Andrew's Plaza
New York, NY 10007

(Sproul had identified herself and provided contact information to him.)

Since receipt of the gag order on June 4, and until June 19 when we wrote this piece about the case on Reason.com, Reason has not spoken with any outside parties about the subpoena or the gag order. We originally intended to publish the subpoena as part of a Reason.com story about it after the reply deadline; unfortunately, the gag order put those plans on ice.

Having already suggested that Reason might have interfered with a grand jury investigation, Velamoor contacted Sproul on the afternoon of Friday, June 5, in response to a letter from her explaining the commenters' constitutional rights and laying out the timeline of Reason's notification to them. Velamoor told her that he now had "preliminary information" suggesting that Reason was in violation of the court order. Sproul said we were not and asked for further information. Velamoor refused to give any specifics, saying simply that he was "looking into it further."

So as of this point in the saga, Reason had been subpoenaed, we had been vaguely—and falsely—accused by a United States Attorney's office of actions verging on obstruction of justice and contempt of court, and we were now told that we were being investigated further.

None of the six commenters informed us that they would be filing motions to oppose the U.S. Attorney's subpoena. Therefore we complied with the subpoena on the deadline of June 9.

Providing the subpoena to the commenters before the gag order was issued is what presumably enabled it to become public. That has had the effect of bringing to light what these compulsory grabs for information look like, launching a wide number of conversations about a grand jury process in which the government can target individuals, platforms and publications for data about users.

(For a relatively comprehensive list of coverage of the matter, go to this post at the legal blog Popehat, which published the first article on the subpoena and its implications.)

Reason's experience needs to be understood in a larger context. Especially since the 9/11 attacks, there has been a mounting conflict between the values of free speech and constitutional due process, with government making increasing demands—often under threat of punishment—for all sorts of information from innocent citizens. Coupled with the rise of a secretive and pervasive surveillance state, this tension means that Americans have no way of knowing just how unfree their speech really is.

While it is impossible to fully ascertain the frequency of information requests from local, state and federal law enforcement, there is every reason to believe websites are subjected to thousands of demands each year. It is also not clear how other websites interpret the type of letter requesting "voluntary" confidentiality that Reason received.

How often is that letter sent along with subpoenas? And how often does it achieve its intended effect of securing silence? In other words, does it have the same effect as a gag order?

In 2013, for instance, Mother Jones reported that Google, Facebook, Twitter and Microsoft have between them received "tens of thousands of requests for user data from the U.S. government annually," covering hundreds of thousands of accounts. Using corporate transparency reports, the magazine estimated that the companies complied with the demands between 72 percent and 89 percent of the time, and that it's impossible to know how many of those requests were filled without the affected users ever knowing their information had been targeted.

Also confusing the discussion about these orders is that different categories of cases have different rules and procedures, with some granting more power to targets than others.

"Unlike grand jury subpoenas, subpoenas for commenter information in civil cases and in public criminal prosecutions are easier for websites to deflect. The information sought there may be truly tangential and the parties may be willing to negotiate," Sproul told Reason. "But, as in this case, when a grand jury subpoena targets specific information that it contends is necessary to an investigation and can demonstrate the link, any fight is going to be a seriously uphill battle."

Regardless of the legal details, the growing government demand for user data and our own experience with court-enforced silence on a self-evidently ridiculous investigation raise important questions about free speech and the abuse of power.

Reason's unmoderated comment space is rare among comparable publications and has, over the years, developed into a forum that is by turns exciting, intellectually advanced, outlandish, cringe-inducing and more foul-mouthed than any locker room this side of the Crab Nebula. It is something to be celebrated as a voluntary community that can be engaged or ignored as the spirit moves you (we say that as writers whose work and physical shortcomings rarely escape unscathed from any thread). However trollish many of our commenters can be, they have created a sphere of free speech that delivers on one of the great promises of the Internet, which is unbridled expression, dialogue and argument.

We took risks by creating an autonomous zone in which our readers are left to their own devices. Some of the risk is reputational—how many other serious outlets allow anonymous commenters to run riot as we do? Some of the risk is legal, as in the current situation.

One further note about anonymity in our comment threads. Commenting on our site requires registration using a working email address (which is hidden from public view unless a commenter chooses to have it displayed). We also log IP addresses. We do both of these things in order to fight spammers and trolls—people who have shown enormous determination in their efforts to disrupt the discussion.

Our commenters are generally a tech-savvy bunch. It is likely that those who have a desire for a very high degree of anonymity are taking control of that themselves, using anonymous email addresses and tools to prevent us from logging IPs connected to them.

But Reason.com is not the dark Web. Many of our regular commenters voluntarily display either personal website information or their email addresses. In fact, three of the six commenters subject to this very subpoena voluntarily displayed public links to personal blogs at Blogger as part of their comments, one of which further links to a Google+ page. Raising the question: How can the government view these so-called "threats" as so nefarious when people posted them in such a non-anonymous fashion?

Due in part to the government's secrecy and possible gag orders or requests for "voluntary" confidentiality, we don't know whether Google or other media outlets have been subpoenaed in this particular case. Judge Forrest's sentencing and comments in the Silk Road trial have drawn widespread criticism in corners of the Internet that value privacy and oppose the ruinous drug war. The potential number of critical comments subject to the District Court's low bar for investigative compulsion is enormous. Now multiply that number by the number of controversial court cases, and you could quickly get to the point where federal courts were doing nothing but investigating online trolls.

Surely there are more pressing tasks, ones that don't involve suppressing the speech of journalistic outlets known to be critical of government overreach.

Reason's guiding principle over 47 years has been to expand the legal and cultural space for free expression, as the bedrock value behind human flourishing. As libertarians who believe in "Free Minds and Free Markets," Reason takes seriously an obligation to our audience and to our critics not simply to hold on to what we've got but to increase the rights of everyone to speak openly and without figurative or literal prior restraint.

To live in a world where every stray, overheated Internet comment—however trollish and stupid it may be—can be interpreted as an actionable threat to be investigated by a federal grand jury is to live in a world where the government is telling the public and media to just shut up already.

As we gather and publish more information on just how often this sort of thing happens, we pledge to always be on the side of more speech rather than less.

Nick Gillespie is the editor-in-chief of Reason.com and Reason TV and the co-author, with Matt Welch, of The Declaration of Independents: How Libertarian Politics Can Fix What's Wrong With America. Matt Welch is editor-in-chief of Reason magazine. This article first appeared on Reason.com.

The Sinister Legal Threat to Online Commenters | Opinion