The ACLU defends anonymous newspaper commenters

Maggie McLetchie, a lawyer for the ACLU in Nevada, is defending four people whose names she does not know. Her boss knows their names, she said, but she doesn’t, and it’s her goal to make sure nobody else does either.

The ACLU was approached recently by four people who left anonymous comments on a story about a tax evasion trial in the Las Vegas Review-Journal. A subpoena has been issued demanding the IP addresses, email addresses and any other information about them in an attempt to identify who they are. Prosecutors claim that these commenters were leaving threats against the jury and the prosecutor in the case.

“The sad thing is there are 12 dummies on the jury who will convict him,” one comment stated. “They should be hung along with the feds.”

Another one bet imaginary money — quatloos, from Star Trek — that the prosecutor wouldn’t see his next birthday.

McLetchie contended that neither of these are direct threats, and that the subpoenas are merely a way of attacking free speech and these commenters’ rights to remain anonymous. So the ACLU has filed a motion to quash the subpoena.

“The comments aren’t actual threats,” she told me. “One of them for example says that he’d bet quatloos that the prosecutor won’t make it to his next birthday. First of all quatloos are Star Trek money, so it’s clearly a fantastical reference, and is a website that debunks anti tax myth. So it’s clearly an inside joke, it’s meant to be fantastical and it doesn’t reveal any actual plan to kill the prosecutor. As awful and crude as it is, people can wish bad things about people and wish bad things would happen to people without it being an actual threat. So in our view, the subpoenas are clearly problematic because the government is in essence trying to squelch the criticism — most of the comments were critical of the government in this case, and now they’re seeking their information, including IP addresses, presumbably because they can turn around and go to the ISP and get more precise information about who these people might be.”

McLetchie said that this case is an important one because it sets a dangerous precedent that would send a message that “if you go on the internet and you criticize the government, the government might start a criminal investigation about you, and we think that’s extremely problematic.”

The Las Vegas Review-Journal had already fought off a more broad subpoena asking for information about the commenters, but the ACLU lawyer said the publication is not fighting this one, hence why the four anonymous people approached the ACLU. But she applauds the newspaper for not only fighting the first subpoena, but for going through the steps to expose it publicly.

“It’s entirely possible that this has happened in the past without anyone knowing what was going on,” she explained. “Because a grand jury is generally secret, and here we were just lucky enough to have a newspaper who was willing to stand up for the first amendment. We applaud the Journal for standing up to this request, because the fact of the matter is that most people who get a request from the government — it has the US attorney’s name on it, it’s got the court behind it, it says ‘grand jury subpoena’ — they get a request like this and they’re going to hand over the information. They’re not going to think about whether this implicates the rights of the people making the comments, or why the court is even doing this is the first place.”

Since filing the motion to squash the subpoena, the US attorney’s office has filed a motion to dismiss the ACLU’s case, and has done so under seal so that the ACLU doesn’t get a copy of the motion.

“It’s put us in a weird position, because we obviously can’t litigate against an imaginary enemy when we don’t know what they’re saying,” she said. “We’re filing something asking the court to unseal the motion they just filed.”

Meanwhile the anonymous commenters remain unnamed, and even with the IP addresses there’s no guarantee that the prosecutors will find out who they are. But either way the publicity surrounding this case will likely make newspaper commenters across the US aware that the cloak of anonymity is not always everlasting, and that their identity is sometimes only an IP address away.