Dear Members and Advocates,
This week’s weekly update is coming to you a bit early because there is an important update to disseminate. The Court’s decision in the Internet Identifier challenge came out late Friday.
We initially reported the decision as “disappointing”. We viewed it as such because summary judgment was granted, in part, and denied in part. We should not have lost on any counts, so the fact that it was not an entire win, blasting the government for blatant First Amendment violations, was an initial disappointment. However, after reading the decision again, and again, and talking to others, and reading the decision another half-dozen times, we realized just how significant a win this case has been.
To explain; let’s consider where we were when this case was first filed. Just over 2 years ago, we were in horrible shape. The Florida legislature passed a law that was scheduled to take effect on October 1, 2016. That Law would have effectively required we register every URL we access online. Not just every primary domain, every URL! It was burdensome, intrusive and would have been impossible to comply with. For those whose jobs involve work online, it would have made continuing in their positions practically impossible. It made no exemptions for any type of communication.
In August of 2016 our attorneys filed suit in this action and one of the first steps in the challenge was seeking an injunction to block the implementation of the October 1, 2016 change. We got the injunction! Had nothing more happened in this case, it would have been a tremendous win. The following year, the government made another attempt at an Internet Identifier registration requirement, but this time – knowing they would lose miserably if it looked anything like the original – it was dramatically watered down. No longer did it require every URL, but only the primary domain. It also excluded the requirement of registering identifiers used for commercial transactions, news or political communication. In earlier case proceedings, we argued that the identifier law precluded business dealings, chilled anonymous speech in comments on news articles and pointed out that our new president used Twitter as a primary channel for political communication. These three forms of speech had now been carved out and don’t require registration.
A second (and third, and fourth…) reading of the judges order also provide some very useful tidbits. One of the concerns we had was that the determination of which websites require registration is vague. For example; for one user Craigslist is a classifieds site so it’s clearly for the sale and purchase of goods and exempt, for Sheriff Grady Judd, Craigslist is clearly a dating site and he would likely think it’s not exempt. Well, the Judge reminded us in his Order that, “any doubt on this score should be resolved by the rule of lenity, under which ambiguities in a criminal statute — this is one — that require a court to guess at the statute’s meaning must be resolved in a defendant’s favor”.
Also, the judge provided (several times) some clarifying commentary that, “the requirement to register an internet identifier is triggered only by direct user-to-user communications”. So emails would be user-to-user and instant messenger would be user-to-user, but comments on a public forum such as floridaactioncommittee.org are user-to-public and are arguably excluded (FAC’s site is arguably excluded anyhow because our use is primarily for the dissemination of news). Plus, if there’s ambiguity it must be resolved in the defendant’s favor.
While the Judge didn’t find the collection of certain internet identifiers as unconstitutional, what he did find was the public dissemination of the information to be In other words; the identity of the online speaker is available to law enforcement only – not to the public. Hopefully, that will provide some level of protection from the internet trolls and vigilantes (in itself, a significant victory). That was our win in this round, but when you look back over the last two years of litigation and consider we’ve blocked the implementation of the horrible URL requirement, drastically pared down the types of communication that is registrable, ensured our identifiers won’t be publicly disclosed and have a district court order that provides some protective clarifying language, the internet identifier challenge has been a huge win!
It is important that we thank and acknowledge the attorneys at Weitzner & Jonas and the Florida Justice Institute for their hard work on this case. There are no lawyers more dedicated, than the ones who worked on this case. We also thank the named plaintiffs, who agreed to hang in there despite not being able to maintain “John Doe” status. They put themselves on the front lines in order to protect all of us. Their courage is admirable. We also want to thank the Florida Association of Criminal Defense Lawyers, who made a significant contribution to our lawsuit and bridged our shortfall. Without these individuals and organizations, this would not have been possible.
Finally, we need to thank all the FAC members who donated to the Internet Identifier Challenge. We did it!!! We are so much better off than we would have been had this suit not happened. Many of you think that a small amount won’t make a difference, but it does. If every one of our more than 1000 members contributed just a few dollars a month, we would have no problem funding more lawsuits. In the end, every penny makes a difference. We have more challenges to bring and we need to bring these challenges to improve our lives or the lives of someone we love who is on the registry. Please consider visiting https://floridaactioncommittee.org/donations/ and giving what you can to help make a difference. With Unity Comes Change and let’s keep the momentum going.
Sincerely,
The Florida Action Committee
SOME HEADLINES FROM THIS WEEK
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