Imagine this scenario. You get up one morning, make your coffee and check the news. You find that an online feature article in a big, urban newspaper in your state is nothing but a one-sided, ignorant attack on your right to bear arms. In this case the article is focused on attacking a local firearms manufacturer, but it also impugns your Second Amendment rights.
Okay, that’s not so unusual, but this time you’ve either worked at that company or know someone who does, so you decide to respond with the facts. You go into the comment section below the article and soberly show the journalist where they went wrong.
Now you feel good about yourself. You’ve spoken up for your freedom and kept your head about it. You used a screen name, so it was an anonymous debate, as is your right. You only hope that your factual response makes the journalist think. But later you hear the Department of Justice (DOJ) is pressuring the newspaper to give them your IP address, because they want to talk to you. Can they do this?
Yes, said a court.
In a case that could kick out the trusses of online freedom, Judge Diane J. Humetewa of the U.S. District Court for the District of Arizona ruled in June that the DOJ can force a private company—say, Facebook, Yelp or a local media company—to give up your identity simply because you expressed an opinion online.
If this ruling stands, this could affect speech across the internet.This ruling occurred after the DOJ obtained a grand jury subpoena to make Glassdoor, an online job-review website, give up the identities of eight people (the DOJ initially wanted 125 peoples’ identities). The DOJ wants these peoples’ internet protocol (IP) addresses, their credit card information and other identifying details so it can identify them, question them and perhaps compel them to testify against a company the DOJ is investigating.
Glassdoor, a California-based company, quickly appealed the ruling to the 9th Circuit Court of Appeals, which is where it stands at the time of this writing.
If this ruling stands, this could affect speech across the internet. And politically incorrect groups, such as those who choose to own guns, could be particularly susceptible to any administration that opposes their constitutional rights.
A state’s district attorney or a U.S. attorney, for example, could use such a newfound power to go on a fishing expedition against citizens or an industry it doesn’t like. It could force gun owners, for example, who use internet pseudonyms while on a gun blog talking about a manufacturer’s trigger system to be unmasked and dragged into a judicial process.
One thing the NRA has long lobbied against is allowing the government to create databases of gun owners.Let’s say such a person is a gunsmith or works for an outdoor retailer. The spin that could result from them being subpoenaed could cause them to lose their jobs or occupations—as it could do to the eight people the DOJ is trying to force Glassdoor to reveal.
One thing the NRA has long lobbied against is allowing the government to create databases of gun owners. Such a newfound power for government could easily lead us in that direction. After all, “the right of the people to keep and bear arms, shall not be infringed” includes protecting the privacy of gun owners.
Brad Serwin, general counsel at Glassdoor, said: “We’d like a precedent set that respects American freedom in today’s world. The government is arguing they should be able to find out someone’s identity as long as it is not acting in ‘bad faith.’ We’re arguing that, legally speaking, the government is required to pass a ‘compelling interest’ test before being given the authority to demand people’s identities from a private company.”
Fourth Amendment protections don’t block this because the government is going after a private company (a third party) for these people's info, so according to the Supreme Court’s “third-party doctrine” these people have “no reasonable expectation of privacy.” According to this judge, all those pseudonyms we see on social media and in comment sections below articles are no protection if the government wants to know who is speaking anonymously.
If this sounds like a lot of what-ifs, you’re right. But watching out for our freedom by looking ahead for new pitfalls is part of keeping our right to bear arms intact in this digital age.