New state law adds protections for anonymous online speech
October 03, 2008
First Amendment Coalition
California Governor Arnold Schwarzenegger has signed a bill that greatly strengthens the right to anonymous speech online. Assembly Bill 2433 raises procedural obstacles to out-of-state companies that subpoena California-based internet service providers for the IDs of anonymous posters. Unless there is a demonstrable basis for the underlying lawsuit, the subpoena will be thrown out and attorney’s fees charged to the out-of-state company.
Corynne McSherry of the Electronic Frontier Foundation (one of the co-sponsors of the bill) explains:
One of the most pernicious threats to anonymity is the filing of trumped-up lawsuits as an excuse to force ISPs to reveal speakers’ identities. Once such a lawsuit is filed, speakers who want to protect their anonymity must find a way to pay a lawyer to go to court and prevent disclosure of their personal information. That can be a real hardship—in fact, even the threat of having to go to court may discourage many people from speaking out in the first place.
Californians have long had an extra layer of protection against these lawsuits. Thanks to California’s anti-SLAPP law (SLAPP stands for Strategic Lawsuits Against Public Participation) they can file a special motion to strike any cause of action based upon their speech or petition activity. The anti-SLAPP law works fine to stop an abusive subpoena if the underlying lawsuit is filed in California. But there’s a loop-hole: An appellate court recently ruled that the anti-SLAPP provisions don’t apply if the underlying lawsuit is filed outside of California. As a result, speakers and companies in California were exposed to frivolous satellite litigation without the shield of deterrence provided by the anti-SLAPP law. AB 2433 closed this loophole by amending California law to provide that individuals whose information is subpoenaed can move to quash the subpoena (i.e, to prevent production of the requested information) and, if they succeed, seek compensation for the costs of going to court.