On Internet Privacy rights...

Legal Beagle said;

ARTICLE SUBMISSION

On Internet Privacy rights...

It seems there is someone posting to this blog that intends to intimidate the rest through the spurious allegations via news stories of a case filing, and foreign decisions, that all of your identities will be discovered. Although internet privacy law is not my prime practice area, I do have some experience here.

There have been many cases before various state Supreme Courts, and the U.S. Supreme Court, regarding the privacy rights of bloggers.

What follows are some of the U.S. LEGAL DECISIONS regarding this issue. Courts do not consider foreign law, or filed complaint, just adjudicated decisions.

Anonymous communications have an important place in our political and social discourse. The Supreme Court has ruled repeatedly that the right to anonymous free speech is protected by the First Amendment. A much-cited 1995 Supreme Court ruling in McIntyre v. Ohio Elections Commission reads:

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.

The tradition of anonymous speech is older than the United States. Founders Alexander Hamilton, James Madison, and John Jay wrote the Federalist Papers under the pseudonym "Publius," and "the Federal Farmer" spoke up in rebuttal. The US Supreme Court has repeatedly recognized rights to speak anonymously derived from the First Amendment.

In N.J. in 2007 Case entitled Manalapan v. Moskovitz, the New Jersey Township of Manalapan filed a malpractice suit against its former attorney Stuart Moskovitz, alleging misconduct regarding the Township's purchase of polluted land in 2005. The decision to file suit was met by a lively debate in the regional press and among local bloggers. One blogger who was particularly critical of the Township, of this and other decisions, was Blogspot blogger "datruthsquad" (http://datruthsquad.blogspot.com). Inexplicably, attorneys for the Township issued a subpoena to Google (owner of Blogspot) demanding that the identity of this anonymous critic be turned over, along with datruthsquad's contact information, blog drafts, e-mails, and "any and all information related to the blog." Despite repeated requests from EFF (now representing datruthsquad) to explain how this could be anything other than an attempt to out a vocal critic, attorneys for the Township refused to withdraw the subpoena and informed EFF that it could go to court to object to the subpoena if it so chose. On November 28, 2007, EFF filed a motion to quash the subpoena and for a protective order to prevent the Township from issuing similar subpoenas in the future.

Outcome: On December 21, 2007, Superior Court Judge Terence Flynn granted EFF's motion to quash the Township's September 26th subpoena seeking the identity of datruthsquad and denied a motion by the township to authorize future subpoenas, finding that the subpoena amounted to "an unjust infringement on the blogger's First Amendment rights" and that the blogger "has a right not to be drawn into the litigation." Judge Flynn denied the motion for a protective order, finding that it was unnecessary at this time.

More from Judge Flynn's ruling from the bench:

"And I [...] recognize that there are First Amendment issues with regard to disputes with the past administration. And that anyone [...] has a right to make their feelings clear. And they have a right not to be intimidated by the issuance of discovery requests in order to shut them down. For that reason, in many ways, the authority cited by the intervenor is correct and accurate. And first of all the [...] blogger, if in fact it’s an individual person, and I’m assuming absent any evidence that it is another individual person, has a right not to be drawn into the litigation and forced to reveal identity or to impede on his or her First Amendment rights simply on a suspicion, however founded or unfounded, and I don’t believe that this suspicion is sufficiently founded at this point to determine that it is Mr. Moskovitz. That person should not be drawn into the litigation and forced to abide by the rules with regard to exchange of information that the parties have, as opposed to a third party. So the Court is satisfied that there is no authority under law for this particular subpoena to obtain this private information. To allow the subpoena would be undue and unjust infringement on the blogger’s First Amendment rights. There’s no factual basis at this point, other than a mere suspicion for the justification. And ultimately that even if the information were obtained, it would be so remote to the actual elements of this litigation that it would not be admissible under any circumstances."

There are dozens more cases with similar outcomes that I could cite here. a quick Lexis-Nexis search will reveal over a dozens cases where the First Ammendment right to Anonymity is upheld.

Although I have no idea who the wannabe attorney is who posted those warnings, it reminds me greatly of Mr. Polito's public legal advice to townspeople, regarding his ability to Google search the law, without the contextual knowledge to apply the Law. In any event, these postings are merely, in my opinion, an attempt to muzzle dissent and debate, and are indicative of politics in Atkinson.

I have watched with rapt attention for many years the political fray in Atkinson, and I have observed that whenever a thorny issue presents itself, and is discussed on this blog, the reaction of the town officials is never to respond to the issue itself, but rather to attack the critics, this would appear to me to be an extension of that.

- LegalBeagle