Florida Considers a Bill Outlawing Anonymous Websites

Copyright First Amendment Anonymity

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True Origin of Digital Goods Act, H.R., CS/HB 271, 2015 Leg., Reg. Sess. (Fla. 2015).

The bill is available at the Florida House of Representatives.

Florida lawmakers are considering a bill that would prohibit certain anonymous websites and online services. Under the so-called “True Origin of Digital Goods Act,” owners and operators of websites that disseminate “commercial” recordings or audiovisual works must prominently disclose their true names, physical addresses, and telephone numbers or email addresses on the websites. The bill extends to all websites that deal “in substantial part” in disseminating such works, “directly or indirectly,” to Florida consumers.

One of the rationales provided for the proposal is the protection intellectual property rights. According to staff analysis by the Florida House of Representatives, “bad actors” who run websites that infringe upon the rights of copyright owners are “unlikely to disclose[] the personal information required by this bill.” Thus, the bill would “allow owners of copyrighted works to indirectly protect their intellectual property.”

Opponents of the bill criticize it on a number of grounds. For instance, the Electronic Frontier Foundation argues that the bill’s definition of “commercial recording or audiovisual work” — that is, any work that the work’s “owner, . . . agent, or licensee has disseminated or intends to disseminate” — is too abstract and vague. Indeed, a work may be “commercial” under the bill “regardless of whether a person who electronically disseminates it seeks commercial advantage or private financial gain from the dissemination.” As a result of such a broad terminology, virtually anyone could potentially seek a court order to disclose the name and physical address of a covered website’s owner. ArsTechnica provides additional analysis of the proposed bill.

Under the bill, an owner or licensee of a covered work will be entitled to bring an action for declaratory and injunctive relief against an owner or operator of a website that is electronically disseminating the work and that has failed to disclose the required information. The bill’s disclosure obligation applies even if all the recordings or audiovisual works disseminated by the website belong to the website’s operator. Prior to filing a claim, the aggrieved party will have to provide notice to the website’s operator, who will then have 14 days to comply with the disclosure requirement. The operator’s failure to comply will allow the owner of the work to file a lawsuit for legal redress and to recoup procedural expenses and attorney fees.

The bill was filed in the Florida House of Representatives on January 15, 2015. Currently (as of March 13, 2015), the bill is being considered by the Florida Regulatory Affairs Committee. If enacted, it will take effect on July 1, 2015.

The Electronic Frontier Foundation and other freedom of speech advocates contend that the requirement to reveal the website operator’s name and address could violate the First Amendment and unduly impinge upon the freedom of speech. The vague language of the bill may force anonymous bloggers to reveal their names and physical addresses, even in cases where the website merely contains links to the websites or files of third parties. Indeed, the Florida House’s analysis of the bill acknowledges that “[t]here is an inherent risk . . . when disclosing private information on the Internet. Bad actors can use information found on the Internet to assist in identity theft [and] use personal information to harass, extort, coerce, or publicly shame a person. . . .” Further constitutional problems may arise in cases where the bill conflicts with federal regulations or legal regimes of foreign states.

In addition, TechDirt warns that the bill may extend the powers of law enforcement agencies in general and the police in particular. The concern is that law enforcement agencies will be able to rely on the proposed statute to organize searches and confiscations from owners or operators of various blogs and personal websites. More particularly, because the bill does not clarify its territorial reach, the Florida police may evolve into a global intellectual property policeman. If such phrases as “dissemination of commercial recordings or audiovisual works, directly or indirectly” are interpreted broadly, then Florida law enforcement agencies may start acting against website operators that are located in other states, or even internationally.