[tf2-survey] Privacy and Anonymity Issues in the WHOIS database

["Johnson, Marvin" <MJohnson@xxxxxxxxxx>]

Dear Sir or Madam:

I am Marvin J. Johnson, Legislative Counsel for the ACLU on First Amendment speech issues. I have held this position since October of 1999. Prior to taking this position, I was the first Executive Director for the Wyoming ACLU, where I worked on several cases dealing with free speech. 

The ACLU is concerned about the current WHOIS debate, as it seems to largely ignore issues of privacy and anonymity. We therefore submit these comments for your consideration.

The Supreme Court has recognized that the First Amendment protects the right to anonymity.
See, McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342 (1995)("anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and dissent").This right to anonymity is part of "our national heritage and tradition." Watchtower Bible & Tract Soc'y of New York, Inc. v. Village of Stratton, 536 U.S. 150, 166 (2002).

The right to anonymity is necessary to encourage a diversity of voices and to shield unpopular speakers:

"Anonymity is a shield from the tyranny of the majority. . . .It best exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation. . .at the hands of an intolerant society.  The right to remain anonymous may be abused when it shields fraudulent conduct.  But political speech by its nature will sometimes have unpalatable consequences, and, in general, our society accords greater weight to the value of free speech than to the dangers of its misuse." McIntyre, 514 U.S. at 357 (citation omitted).

The longstanding right to anonymity is especially critical to a thoroughly modern medium of expression: the Internet.  The rise of the Internet has created an opportunity for dialogue and expression on a scale and in a manner previously unimaginable.  As the Supreme Court has recognized, the Internet is a new and powerful Democratic forum in which anyone can become a "pamphleteer" or "a town crier with a voice that resonates farther than it could from any soapbox." Reno v. ACLU, 521 U.S. 844, 870 (1977).

Recognizing the speech-enhancing and equalizing features of the Internet, the Supreme Court has accorded it the highest degree of constitutional protection. Id. ("no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium"). This rigorous protection extends to speech conducted anonymously on the Internet. See, e.g., Doe v. 2theMart.com, 140 F.Supp.2d 1088, 1093 (W.D. Wash. 2001) ("the constitutional rights of Internet users, including the right to speak anonymously, must be carefully safeguarded"); Columbia Ins. Co. v. Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999) (confirming the importance of the "legitimate and valuable right to participate in online forums anonymously or pseudononymously"); ACLU v. Johnson, 4 F.Supp. 2d 1029, 1033 (D.N.M. 1998), aff'd 194 F.3d 1149 (10th Cir. 1999) (striking down law "that prevents people from communicating and accessing information anonymously"); ACLU v. Miller, 977 F.Supp. 1228 (N.D. Ga. 1997) (striking down law prohibiting anonymous Internet speech).

This right to anonymous speech has even been recognized in the context of commercial speech. See NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998)(applying the Central Hudson test to uphold anonymity in a job advertisement).

We understand there has been some discussion of differentiating between commercial and non-commercial sites on the Internet. The WHOIS information on commercial sites would be freely available, while there may be some limitations of availability on non-commercial sites. Such a distinction would have the effect of chilling both commercial and non-commercial speech, as even the United States Supreme Court has been unable to adequately define the difference between the two. 

The United States Supreme Court has held that commercial speech is "speech proposing a commercial transaction." Central Hudson Gas & Elec. v. Public Serv. Comm'n, 447 U.S. 557, 562 (1980), Bolger v. Youngs Drug Products Corp. 463 U.S. 60, 66 (1983).  Within those narrow confines, such a distinction may be helpful. The question of what constitutes commercial speech however is far more nuanced, and bright lines are hard to find.  For example, in Rubin v. Coors Brewing Co., 514 U.S. 476 (1995), the Court found that a statement of alcohol content on the label of a beer bottle constituted commercial speech. Likewise, the Court found commercial speech in statements on an attorney's letterhead and business cards identifying him as a Certified Public Accountant and Certified Financial Planner. Ibanez v. Florida Dept. of Business & Professional Regulation, Bd. Of Accountancy, 512 U.S. 136 (1994).

In Bolger, the United States Supreme Court was faced with a question of whether a federal law prohibiting the mailing of unsolicited advertisement for contraceptives violated the federal Constitution's free speech provision as applied to certain mailings by a corporation that manufactured, sold, and distributed contraceptives.  One category of the mailings in question consisted of informational pamphlets discussing the desirability and availability of prophylactics in general or the corporation's products in particular. The Court noted that these pamphlets did not merely propose commercial transactions. Bolger, supra. at 62. While the parties conceded the pamphlets were advertisements, the Court did not find that fact alone sufficient to make them commercial speech, because paid advertisements are sometimes used to convey political or other messages unconnected to a product or service or commercial transaction. Id. The Court concluded that a combination of three factors, all present in this case, provided strong support for characterizing the pamphlets as commercial speech.  The three factors examined by the court were: (1) advertising format; (2) product references; and (3) commercial motivation.

Part of the difficulty in applying Bolger is that the Court rejected the notion that any one of the factors was sufficient by itself, but also declined to hold all of these factors in combination, or any one of them individually, was necessary to support characterizing certain speech as commercial. Id. at 67, fn. 14, and 66, fn. 13.  It is no wonder the Supreme Court in later decisions acknowledged that "ambiguities may exist at the margins of the category of commercial speech." Edenfield v. Fane, 507 U.S. 761, 765 (1993). See also, Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 419 (1993) [recognizing "the difficulty of drawing bright lines that will clearly cabin commercial speech in a distinct category"] and Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 637 (1985) [stating that "the precise bounds of the category of . . .commercial speech" are "subject to doubt perhaps."].

Illustrative of this problem is Nike v. Kasky, a case the Supreme Court recently ducked because of its complexity. In Kasky v. Nike, 27 Cal. 4th 939 (2002), Nike responded to allegations that in the overseas factories where Nike products were made workers were paid less than the applicable local minimum wage; required to work overtime; allowed and encouraged to work more overtime hours than applicable local law allowed; subjected to physical, verbal, and sexual abuse; and exposed to toxic chemicals, noise, heat, and asked without adequate safety equipment, in violation of applicable local occupational health and safety regulations. In responding to these allegations, Nike made statements and press releases, wrote letters to newspapers, wrote a letter to university presidents and athletic directors, and distributed other documents for public relations purposes.  Nike also bought full-page advertisements in leading newspapers to publicize a report that found no evidence of illegal or unsafe working conditions at Nike factories in China, Vietnam, and Indonesia.  Based on these statements, Kasky filed a private attorney general action against Nike based upon California's unfair competition law and false advertising law.  

There was no question that the allegations against Nike were fully protected under the First Amendment to the United States Constitution. The issue for the California Supreme Court was whether Nike's responses to the allegations were commercial or noncommercial speech for purposes of constitutional free speech analysis.  Despite the fact that none of Nike's responses proposed a commercial transaction, the California Supreme Court deemed the speech "commercial," providing it less protection than the initial allegations.  In a dissent, Justice Chin noted that "[w]hile Nike's critics have taken full advantage of their right to ' uninhibited, robust, and wide-open' debates, the same cannot be said of Nike, the object of their ire. When Nike tries to defend itself from these attacks, the majority denies it the same First Amendment protection Nike's critics enjoy.  Why is this, according to the majority?  Because Nike competes not only in the marketplace of ideas, but also the marketplace of manufactured goods.  And because Nike sells shoes--and its defense against critics may help sell those shoes--the majority asserts that Nike may not freely engage in the debate, but must run the risk of lawsuits under California's unfair competition law and false advertising law should it ever make a factual claim that turns out to be inaccurate."  Quoting from First National Bank of Boston v. Bellotti, 435 U.S. 765, 785-86 (1978), Justice Chin stated, "[W]here. . .suppression of speech suggests an attempt to give one side of a debatable public question an advantage in expressing its views to the people, the First Amendment is plainly offended."

What was the "primary purpose" of Nike's responses?  Nike was clearly responding in a public debate concerning the use of low-cost foreign labor to manufacture goods sold in America.  Nike's statements regarding its labor practices in China, Thailand, and Indonesia provided vital information on this very public controversy.  None of Nike's responses included product labels, inserts, packaging, or commercial advertising intended to reach only Nike's actual or potential customers.  Yet, the majority concluded that Nike's speech was "commercial," entitled to less protection than the initial allegations.  Thus, instead of a level playing field, Nike is disadvantaged simply because it may have an economic motivation in engaging in public debate.

This uncertainty as to what is and is not "commercial speech" may have the very real effect of chilling not only commercial speech, but speech that should be fully protected under the First Amendment. Adopting a distinction between commercial and non-commercial speech in the context of the WHOIS database may have the very real effect of chilling both types of speech.

As you consider changes to the WHOIS database, we urge you to protect privacy and anonymity so that the vibrant marketplace of ideas that is the Internet can continue to flourish.  


Marv Johnson
ACLU Legislative Counsel
1333 H Street, NW
Tenth Floor
Washington, DC 20005
202-675-2334