Twitter Overcomes Subpoena Looking to Unmask Anonymous Troll in Free Speech Case
Does copyright law compel the unmasking of anonymous users when First Amendment rights may be threatened by the disclosures?
A federal judge answered “No” to that question when he granted Twitter’s motion to quash a subpoena from strategic advisory firm Bayside seeking to identify the user behind @CallMeMoneyBags, an account dedicated to criticizing wealthy people in tech, finance and politics. On top of finding that the user’s activity constitutes fair use, U.S. District Judge Vince Chhabria found that the user’s First Amendment rights would be violated if the person is identified, possibly in the form of retaliation from a private equity billionaire targeted in his tweets.
More from The Hollywood Reporter
“The mystery surrounding Bayside makes a difference,” reads the order issued Tuesday. “If the Court were assured that Bayside had no connection to Brian Sheth, a limited disclosure subject to a protective order could perhaps be appropriate. But the circumstances of this subpoena are suspicious.”
In a series of six tweets accompanied by photos posted in October 2020, MoneyBags targeted Brian Sheth, founder of investment firm Vista Equity Partners. Each post implied that Sheth was having an affair.
Just a few days after the string of tweets, Bayside contacted Twitter, asserting that it had copyrights to the photos and demanding that they be taken down. Twitter ultimately took down the photos but was subpoenaed to provide information identifying the user. Bayside requested the subpoena under the Digital Millennium Copyright Act, which permits copyright owners to obtain information identifying alleged infringers. According to Bayside, the DMCA forces Internet service providers to comply with subpoenas from copyright holders “notwithstanding any other provision of law,” including competing constitutional protections.
The case drew friend-of-the-court briefs from the American Civil Liberties Union and Electronic Frontier Foundation, which argued that MoneyBags’ First Amendment rights outweigh Bayside’s interest in upholding its copyright. The Copyright Alliance came out supporting Bayside, arguing that copyright holders must be able to identify anonymous online users to protect their work.
Overturning a prior judge’s ruling that would have forced Twitter to comply with the subpoena, U.S. District Judge Chhabria found that Bayside’s interpretation of copyright law “raises serious constitutional concerns.” He rejected the company’s argument that he cannot consider the user’s First Amendment rights.
“A recipient of a DMCA subpoena may therefore move to quash on the basis that the subpoena would require disclosure of material protected by the First Amendment,” reads the order. “The fact that the DMCA allows a potential copyright infringement victim to issue a subpoena to a service provider without first filing a lawsuit says nothing about whether courts should consider the interests of anonymous speakers in the same way they would in other situations.”
The judge was wary of the nature of Bayside’s subpoena. According to court filings, the company was not formed until the month that the tweets about Sheth were posted on Twitter. Chhabria pointed to the fact that Bayside had never registered any copyrights until the registration of the photos posted by MoneyBags. He also noted that there’s no publicly available information about Bayside principals, staff, physical location, formation or purposes.
Attorneys representing the company filed a declaration stating that “Bayside is not and has not ever been owned or controlled by Brian Sheth.” They noted that Sheth doesn’t own “any interest in the copyrights to the Photographs.”
But Chhabria was unconvinced. He said it would be troubling if Bayside was controlled by someone associated with Sheth or formed in response to the tweets. He also questioned why Bayside wanted to identify MoneyBags since the photographs accompanying his tweets were already taken down.
“The Court is left scratching its head,” the order reads. “It is not clear what Bayside has to gain from pursuing a copyright action against MoneyBags.”
Bayside’s managing partner, Bert Kaufman, told The Hollywood Reporter that, “Contrary to Twitter’s speculation, it was not set up to bring this matter, but rather existed before the tweets were posted and the photos were stolen.” According to court filings, Bayside is a “communications and strategic advisory firm” that “licenses photographs for commercial exploitation.”
Kaufman added, “This ruling stands for the notion that a social media giant can also be judge and jury with impunity; where an anonymous Twitter account that purchased bots and followers and stole copyrighted material is allowed to get away with theft without even showing up. Bayside is disappointed and is evaluating its options.”
It’s not difficult to imagine how the DMCA can be weaponized by powerful people to identify anonymous online users posting content they don’t like. Aaron Mackey of the Electronic Frontier Foundation hailed the ruling for rejecting the notion that the copyright law requires compliance with subpoenas even when constitutional protections are at risk.
“The danger of a ruling going the other way would’ve been confirming that copyright claims were special or different and regular First Amendment rules don’t apply,” Mackey said. “That would’ve emboldened companies and organizations who are happy to use copyright as a pretext to unmask speakers or retaliate against them.”
