Criminal Defendant’s Right to Online Identities

Criminal Defendant’s Right to Online Identities

The Houston Chronicle reported this morning that a Houston-area criminal defense lawyer, whose client is accused of injury to a child in the death of a four-year-old child, is seeking the identities of people who posted comments about the case in online discussion forums at websites of The Houston Chronicle, the Conroe Courier, KHOU-TV(Channel 11) and KTRK-TV (Channel 13). On the one hand there is a societal interest in protecting the privacy rights of those who post comments on the internet. There are many legitimate reasons why a person might wish to remain anonymous in posting a comment in a discussion forum. For example, a person might fear retribution from a crazy, unknown individual who is offended by a comment or who misinterprets the comment. A person might wish to share a private experience for the benefit of other people who are going through the same thing. Or, a person might have a question about a frightening medical condition and the person might want to obtain the needed information anonymously. Allowing wholesale disclosure of online identities might have a chilling effect on people with legitimate reasons for posting anonymously on the internet.

But the right to privacy is not absolute and it should not trump an individual’s constitutional right to a fair trial. Too often people aligned with certain advocacy groups will flood public discussion forums with comments that appear calculated to undermine an accused’s right to a fair trial, which includes an impartial jury panel. At times it may be tempting for police officers, detectives and others associated with the prosecution of a case to participate in relevant discussion forums. If people with inside information about a case (or people connected with those same individuals) decide they wish to comment publicly about a case, they should be prepared to do so in a court of law. An accused has the right to confront and cross-examine all of the witnesses against him.

Do you still believe the right to online anonymity is or should be absolute? Judges routinely permit subpoenas of internet service providers (ISP), whose customers are suspected of criminal activities over the internet. The same judges routinely sign search warrants to allow police to search the homes and business of  ISP customers, once their identities have been revealed through the subpoenaed records.

But what about people who aren’t even accused of criminal wrongdoing? How anxious would any of us be to stop a subpoena for the online identity of an anonymous poster, if it appeared that the poster knew the whereabouts of a kidnapped child? I am interested to hear what others have to say.

Very truly yours,

Grant Scheiner (Not Anonymous)