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Wednesday, March 4, 2015

Floridians, Help Us Stop Your State From Outlawing Anonymous Websites

Mitch Stoltz

Floridians, we need your help to stop a dangerous anti-anonymity bill. This week, the Florida state legislature is considering a bill that would make it illegal to run any website or service anonymously, if the site fits a vague category of “disseminat[ing]” “commercial” recordings or videos—even the site owner’s own work. Outlawing anonymous speech raises a serious First Amendment problem, and laws like this one have been abused by police and the entertainment industry.

The bill, which is moving through Florida House and Senate committees this week, requires anyone who operates a website or Internet service to “disclose his or her true and correct name, physical address, and telephone number or e-mail address.” It would apply to any website or service “dealing in substantial part in the electronic dissemination of commercial recordings or audiovisual works, directly or indirectly,” to Florida consumers.

A great many websites could be de-anonymized by this statute, whether they are hosted in Florida or not.

The bill defines a “commercial recording or audiovisual work” as anything an “owner … agent, or licensee has disseminated or intends to disseminate.” That covers a potentially vast number of people. Any of them could apply for a court order forcing a website owner (or potentially their ISP) to reveal their name and address.

Worse yet, the bill could be used to unmask anonymous bloggers, vidders, or musicians who primarily put their own work online if even one recording or video belonging to someone else appears on their site - or perhaps even a link to someone else’s work.

Similar “true name and address” laws in other states have been used to justify police raids on music studios. In 2007, a Georgia police SWAT team (with RIAA employees in tow) raided the studio of DJ Drama and DJ Cannon, makers of influential “mixtapes” that record labels used to promote their artists. The police arrested the DJs and confiscated their CDs and equipment. Their justification wasn’t copyright law (which is a federal law) but a more limited version of the same law Florida is considering, one that applies only to physical goods. If Florida expands on Georgia’s law by including websites, we could see similar police raids against music blogs or other avenues of online speech. And the works on the site might even be in the public domain, as long as some “owner, assignee, authorized agent, or licensee”—perhaps a broadcaster—complains.

The bill does have a few mitigating features. It excludes service providers hosting or transmitting third-party content, as Section 230 of the Communications Decency Act requires. And the bill doesn't apply if the material on a website is “excerpt[s] consisting of less than substantially all of a recording or audiovisual work”—a small and incomplete nod to fair use.

Still, the bill raises big constitutional problems. The ability to speak anonymously is an important free speech right. Forcing website owners to identify themselves violates the First Amendment when laws like this one are vague about which sites must comply. Even a site that a court decides is “likely to violate” the statute could be de-anonymized.

In addition, using state law to regulate the contents of websites creates constitutional problems because the Internet is borderless. This bill could easily apply to sites hosted anywhere in the U.S., not just in Florida. State regulation of websites can interfere with the federal government’s exclusive authority over interstate commerce.

If you live in Florida, contact your legislators and speak out about this bill! You can find your Senator here and your Representative here. Tell them you oppose SB 604 and HB 271.

Please visit the Electronic Frontier Foundation, where this article first appeared, for the latest news in digital privacy and civil liberties.

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