Sealed Case Brief: Courts Must Protect the Right to Criticize ICE Anonymously Online
A few months ago, Reddit received an administrative subpoena requesting identifying information for an account that had criticized Immigration and Customs Enforcement (ICE) and the Transportation Security Administration (TSA) as well as posted biographical details about Jonathan Ross, the ICE officer who fatally shot protester Renée Good. After the user moved to quash, the administrative subpoena was withdrawn. But days after, Reddit received a grand jury subpoena for similar information. The user’s motion to quash the grand jury subpoena was denied, and the user is appealing the denial to the DC Circuit.
Cato joined an amicus brief filed by the American Civil Liberties Union (ACLU), ACLU of DC, Electronic Frontier Foundation, and Center for Individual Rights urging the court to rigorously review the basis for the grand jury subpoena. The right to anonymity is deeply rooted in American history and serves critical functions online and off. While the grand jury traditionally has broad investigative authority, judicial scrutiny is warranted where a grand jury seeks to unmask an anonymous speaker. The government’s interest in unmasking will not be sufficiently compelling to justify piercing a speaker’s anonymity unless the government has made a prima facie showing that the speaker committed a crime. Nor is unmasking an anonymous speaker to chill protected speech a proper purpose for a grand jury subpoena.
Given that this case is sealed, amici cannot speak to the information sought here or the government’s interest in it. However, several of the amici have represented several anonymous internet users whose information was subpoenaed without any legitimate—let alone compelling—need. They have moved to quash several administrative subpoenas that were issued not for any lawful investigative purpose but to chill or silence criticism of the federal government online. Based on this experience and public reporting, amici are concerned that having failed to unmask anonymous critics using administrative subpoenas, the Trump administration is now turning to grand jury subpoenas to accomplish the same ends.