Is the publishing of people’s home addresses and phone numbers “protected speech?”
posted at 10:41 am on March 1, 2017 by Jazz Shaw
A court case in California will be of particular interest to online privacy advocates and anyone familiar with and concerned about the phenomenon known as “doxing.” The subject in question is an anonymous California blogger who writes under the name “Doe Publius.” The author is a gun rights supporter who last year researched the home addresses and phone numbers of a number of state legislators who had voted in favor of strict gun control measures and publish them on his blog. He called it the “Tyrant Registry” and the information was soon picked up by other outlets and went viral. Almost immediately, as so often happens in such cases, the legislators in question began receiving threatening messages.
Following complaints, the state ordered the blogger to remove the information from his website. A court challenge followed and now a federal judge has determined that the published information falls into the category of protected speech being aired in the public interest. (Washington Post)
But on Monday, a federal court ruled that the “tyrant registry” was protected speech. In a lawsuit brought by Publius, Judge Lawrence J. O’Neill of the U.S. District Court for the Eastern District of California said the post and its republishing by another blogger were “a form of political protest.”
“The legislators’ home address and telephone number touch on matters of public concern,” the judge said in the 38-page opinion.
“There is no dispute that Plaintiffs lawfully obtained and truthfully published information that was readily available online,” O’Neill continued. “When lawfully obtained, the truthful publication of that information falls within the First Amendment’s ambit.”
The Washington Post article ranges all over the place, talking about not only specific incidents of this nature but “doxing” in general, going so far as to include cases of swatting. I immediately began to wonder how much of this sort of activity is actually illegal and how the penalties varied across the states. I found this article from officer.com to be interesting, but it also seems to conflate these various levels of activity. Laws on the subject absolutely vary from state to state but seem to depend more on how the information is used rather than how it is sourced.
Starting with the worst-case scenario we can see immediately how it’s problematic to conflate the various levels of offenses. Let’s say that you know the true name, home address and phone number of some individual, be it a legislator, anonymous blogger or anyone else for that matter. If you make a phone call to the police and falsely report a crime taking place in order to “swat” them, it seems obvious to me that you have broken the law, placed people’s lives in danger and, at a minimum, wasted the time and resources of law enforcement officials. This should obviously be illegal and punishable with stiff penalties.
Death threats, while at least somewhat less serious if they are not acted upon, are also a problem. Gaining access to someone’s home phone number and email address to threaten their life or the safety of their family also seems like it should be punishable. But then we come to the somewhat prickly question at the low end of the scale. What if you locate this information about some individual or group of persons and all you do is publish it on the web accompanied by some criticism of their deeds or actions? Have you broken any law? And how much of that data is truly “private” in the first place?
Some of the previous articles I referenced once again engage in conflation when they talk about publishing people’s Social Security numbers, credit card information, etc. This opens the door to identity theft, fraud and robbery so that clearly seems to be information which people should be able to keep private. But what about your home address and phone number? Whether you live in a house or an apartment your address is recorded in all sorts of places. Particularly in the case of public officials, someone might see you leaving your office and follow you on your trip home, noting where it is that you live. You were out traveling on the public street. Your house or apartment is not invisible. Is that truly protected information? And if not, how can it be illegal for that information to be published?
Your phone number seems to fall into a similar category. Back in the old days of land lines we had things known as unlisted numbers, a privilege which you often had to pay extra for in your monthly bill. But once you have a phone and a phone number, particularly these days, and you give it out to other people, you never know where it’s going to end up. If you freely made your phone number available anywhere and it somehow wound up in the hands of a person who decided to publish it along with your name on the Internet, was there actually a crime committed?
This piece is simply intended to begin a conversation, not to provide a definitive answer. I honestly don’t know the answer to those questions. Sure, it certainly seems wrong to go publishing lists of people’s names and contact information which might then be used by other persons having malicious intent. But if something bad happens, isn’t it really just the fault of the person who acts in a malicious fashion and not the one who made this otherwise innocuous information available? Feel free to share your thoughts below.