Court Should Curb Abuse of Grand Jury Subpoenas Targeting Social Media Users

A federal appeals court should curb the government’s abuse of grand jury subpoenas to unmask social media users who criticize lawless immigration enforcement.

That is the message from the ACLU, EFF, and other civil liberties and trade groups who filed a friend-of-the-court brief in a sealed case in the U.S. Court of Appeals for the District of Columbia.

The case involves the government’s investigation of an anonymous Reddit user who commented on a post about an immigration officer in Minnesota. The Department of Homeland Security (DHS) first issued an administrative subpoena to Reddit to unmask the user. When the user challenged the subpoena in court on free speech and statutory grounds (as many others have), DHS withdrew it. But then the government obtained a separate grand jury subpoena—a subpoena issued by a prosecutor to gather evidence to present to a grand jury before any criminal charges are filed—for much of the same information. The user then challenged the grand jury subpoena too, and the case is currently being appealed.

The right to speak anonymously is essential. It preserves privacy and shields critics from government retaliation. In the past year, the Department of Justice (DOJ) has issued grand jury subpoenas to social media companies for their users’ personal data. This is frequently done for improper purposes and without really showing that social media users have committed any crime. These subpoenas have the effect of intimidating and chilling critics, as immigration authorities have engaged in invasive, unconstitutional, and sometimes violent conduct.

As the amicus brief makes clear, courts should not defer to the government’s claims regarding the legitimacy of using grand jury subpoenas to unmask internet users. Instead, the subpoenas must receive proper First Amendment scrutiny. Like many other types of legal processes, grand jury subpoenas are issued by federal officials without prior court approval. And they too can be abused to harass or retaliate against people critical of the government.

The amicus brief was filed in early September and recently unsealed. The brief was signed by the American Civil Liberties Union of DC, EFF, the Center for Individual Rights, the Foundation for Individual Rights and Expression, the Cato Institute, and NetChoice.

It is notable that NetChoice signed the amicus brief. It is a trade group that represents many companies who have received similar subpoenas including Reddit, Google, Meta, PayPal, among others. EFF has called on these companies to do more to defend their users’ speech and privacy rights in the face of these subpoenas.