Protecting Anonymous Online Speech

Legal Frontiers in Digital Media Podcast

This session will take an in-depth look at legal strategies for protecting anonymous speech online from the perspective of the platforms that provide the channels of communication, as well as from users seeking to maintain their online anonymity. A panel of expert inside and outside counsel will consider:

• What are the legal standards for maintaining user anonymity when a platform is served with a subpoena – how do they vary from jurisdiction to jurisdiction – and differ depending on the nature of the action (e.g., defamation vs. copyright vs. criminal investigation)? Should the standard be codified?

• How do efforts to identify defendants through indirect means (e.g., by IP address) affect courtroom battles over anonymity?

• What is the duty of platforms to their anonymous users? How should platforms address the issue of user notification when responding to subpoenas, and under what circumstances must (or should) a platform withhold such notice?

• For platforms maintaining a forum for anonymous speech, what are the best policies with respect to data collection and retention of user information, balancing the desire to protect user identity with the need to operate and protect the platform and generate advertising revenues?

• What assurances should (or should not) be made in the platform’s terms of service with respect to protecting anonymity? Do those assurances affect whether a user can remain anonymous?

• What are the practical mechanics of going into court – either on behalf of the platform or on behalf of an anonymous user; and what are the challenges to attaining a court’s acceptance of an attorney’s appearing on behalf of the anonymous user? Can anonymity be maintained even if the subpoenaing party meets its burden to overcome a motion to quash? What are the mechanisms at a court’s disposal to do so?

• Are anonymity rights litigated haphazardly, and is this bad for development of the law? What if the platform does not want to devote the resources to moving to quash in a particular case, or the user does not have the resources to do so? How can anonymous users find competent lawyers to help them?

• How can we ensure anonymity rights are adequately protected when foreign litigants seek to unmask users in American courts via federal ex parte applications for discovery?

Panelists:
Ashley I. Kissinger, Of Counsel, Ballard Spahr LLP (Moderator)
Raymond Oliver Aghaian, Partner, Kilpatrick Townsend & Stockton
Joshua Koltun, Esq.
Tom O’Brien, VP, Deputy General Counsel, Glassdoor, Inc.

http://www.medialaw.org/images/events/2019podcast/AnonymousSpeech.mp3