A judge's decision that the First Amendment doesn't protect anonymous speech gives the oil company a big win
By Andrew Leonard, Salon.com
9 July 2013
According to a new ruling by a U.S. District Court judge, if you want to be anonymous, you give up your right to have your speech protected by the First Amendment. That's the alarming gist of Judge Lewis Kaplan's decision to give Chevron wide-ranging subpoena powers over the metadata associated with around 100 email accounts.
The context involves a lawsuit by Chevron alleging that an enormous $18.2 billion judgment against the company for massive environmental pollution in Ecuador was the result of a conspiracy. Chevron lawyers believe that access to the email metadata will help them prove their conspiracy theory.
Marissa Vahlsing writes at EarthRights.org:
The sweeping subpoena was one of three issued to Google, Yahoo! and Microsoft, demanding IP usage records and identity information for the holders of more than 100 email accounts, including environmental activists, journalists and attorneys. Chevron’s subpoena sought personal information about every account holder and the IP addresses associated with every login to each account over a nine-year period.
This could allow Chevron to determine the countries, states, cities or even buildings where the account-holders were checking their email so as to "infer the movements of the users over the relevant period and might permit Chevron to makes inferences about some of the user’s professional and personal relationships."
Judge Kaplan granted the subpoena, on the grounds that the account holders had "not shown that they were U.S. citizens." And non-U.S. citizens don't get First Amendment protections.
The implications of Kaplan's decision should be disturbing for anyone concerned about the larger issue of government access to the metadata associated with the online activity of U.S. citizens. If the choice to be anonymous means that by default one no longer deserves the protections of the U.S. Constitution, then anyone who tries to hide their identity, for whatever reason, becomes a wide open target for law enforcement surveillance. We've seen this hinted at before in Edward Snowden's revelations about the NSA's surveillance programs. Now we have an explicit legal ruling pointing in the same direction.
George Orwell's name has been overused in the context of the Snowden affair. But if the effort to secure one's individual privacy ends up resulting in the loss of constitutional protections for free speech and against unlawful search and seizure, it's hard to know how else to describe it. The effort to be private entails an absolute loss of privacy. That is the world of "1984."