This decision, invalidating broad requirements that convicted sex offenders disclose all online identities and passwords to law enforcement agencies, was of primary interest to me because of what it said about anonymous speech. But I note a bit perhaps of broader interest to trademark types, the court’s apparent holding that usernames and passwords are not speech. “The mere reporting of [usernames and passwords] alone is not speech. It does not constitute content and these items are simply the vehicles by which communication can occur on the internet.” Though this is a bit confusing because of the reference to “reporting,” the second sentence quoted seems to indicate that the court thinks that usernames and passwords themselves aren’t speech—the reporting is compelled production of something, and I think what the court’s saying only makes sense if its conclusion is that the items compelled aren’t speech.
As a blanket statement, this doesn’t make much sense to me. While random alphanumeric combinations might not be First Amendment speech, an awful lot of usernames are communicative, even highly expressive (passwords too, but since they’re generally only seen by the human who creates them, there might be a problem calling them “speech” for constitutional purposes, which usually presuppose a message, a speaker, and a recipient). RedStater and BlueStater, for example, tell me a lot about themselves even while they stay pseudonymous. Source identifiers are far more than “vehicles” for communication, the way a mail truck or a bundle of cable might be. Trademark doctrine recognizes this. I’d be surprised if First Amendment law didn’t.
Posts
No comments:
Post a Comment