A new Illinois law will for the first time give people the ability to sue other people or organizations they claim have improperly "doxed" them.
Supporters of the new law, which include Gov. JB Pritzker, assert it is an appropriate response to a rise in incidents of people using the internet to publish private information about someone with the intent of making someone else a target for hate, threats and harassment, both online and in the real world.
Critics, however, say the new law is too vague and they predicted it could be misused to stifle constitutionally protected free speech.
Derived from the terms "docs" or "documents," the term doxing was coined to describe a form of internet harassment in which someone with malicious intent publishes personal information about someone they want to harm. That information can include the target's real name, home address, job, or other information with an intent to bully, harass, humiliate or threaten someone.
As doxing has become a larger problem in the past decade, several state governments have enacted legislation they say is intended to address the public concern.
In Illinois, legislators enacted the so-called “Civil Liability for Doxing Act." Introduced by Illinois State Rep. Jennifer Gong-Gershowitz (D-Glenview), the legislation known formally as House Bill 2954 passed both chambers of the Illinois Assembly with bipartisan support and was signed into law by Pritzker on Aug. 7.
Illinois joins Oregon, Washington State and Nevada which enacted anti-doxing laws.
The Illinois legislation came after public hearings were held in which victims recounted their experiences in being victimized by people who held a grudge or had disagreed with them for various reasons.
Opponents of the legislation, however, say the law is poorly written and will have effects that many who supported the law may not have intended, potentially being used by people - potentially including politicians - to target and silence critics and political opponents.
“The law is hopelessly over-broad,” said Mark Glennon, executive editor of Wirepoints, a Wilmette-based economic and government research-commentary nonprofit. “It goes far beyond the malicious conduct normally associated with doxing and past clear constitutional limits on what speech the government can muzzle.”
Glennon said the lawyers who may have written the new law apparently forgot what every first-year law student knows concerning publications that lead to violence or harm.
“Incitement of imminent violence can be banned,” he said.
David Goldenberg, regional director of the Anti-Defamation League (ADL) Midwest, of Chicago, supports the new law. He said you only have to look at recent death threats made earlier this month against members of the Fulton County, Georgia, grand jury that indicted former President Donald Trump to understand the need for anti-doxing legislation.
Supporters in Illinois have also pointed to alleged doxing actions allegedly taken against the owner of the UpRising Bakery & Café, a bakery in northwest suburban Lake in the Hills, after its owner announced plans to stage a “drag brunch.” According to published reports, the announcement triggered threats of violence against business owner Corrnia Sac. The bakery allegedly was also the target of vandalism.
Sac told the Chicago Tribune not even the Lake Hills Police could provide adequate protection for her, her family and property.
“Doxing literally ruins lives by stoking fear, silencing voices, and causing harm to people’s physical safety, professional reputations and emotional well-being,” Goldenberg said. “We heard during committee hearings in the General Assembly that doxing victims have been stalked, harassed, received death threats, lost their jobs, even assaulted.”
Other Illinois organizations that supported the law’s passage included the Chicago Urban league, Jewish United Fund, Jewish Federation of Chicago, Planned Parenthood of Illinois, Chinese American Service League and the American Muslim and Multifaith Women’s Empowerment Council.
Supporters said the law will allow a doxing victim to seek money damages from a cyber attacker and obtain a court order to stop the attacks. They say this can be accomplished without limiting freedom of speech guaranteed under the Illinois and U.S. constitutions.
They assert the law will require plaintiffs to prove the cyber attacker published personal information with reckless disregard and prior knowledge that the action would harm the victim. In addition, they say, the law requires the alleged doxing victim to demonstrate that they suffered personal harm because of the act.
A reading of the law, however, reveals some grey areas.
The law doesn’t exempt the use of public information that is readily accessible. Nor does it differentiate between the type of person doxed.
For instance, under defamation law, private persons are normally given greater protections in defamation lawsuits than are public officials or celebrities. The reason for this is the need to protect the right by the public to speak their mind about elected officials or public figures, who must tolerate some greater level of negative attention.
However, the anti-doxing law makes no such distinction between a private or public figure, potentially opening critics of public figures to lawsuits, should the public figure claim they were somehow "doxed."
The American Civil Liberties Union (ACLU) of Illinois opposed the law and representatives testified against it during hearings held in Springfield. They said the law could be interpreted too broadly and violate a person’s right of free speech.
Angela Inzano, advocacy strategist for the ACLU of Illinois, said the law was improved from the version originally filed, but continues to be overly broad and inclusive of already protected free speech.
While the law specifically excludes from liability potentially problematic publications of information shared in private conversations in text or email between two people, Inzano said the law doesn’t specify if three or more people communicating by text messaging or email could be held liable.
In addition what the law considers “personally identifiable information” she said has been left vague. A person’s name and where they work in combination would be personally identifiable information, but people have been sharing information like that on social media for many years.
Inzano said the law could have a chilling effect on such free speech.
“The inclusion of both truly available information as well as private conversations between more than two people open the law up to misuse by those most powerful and with the resources to do so in order to silence legitimate criticism and protest, whether it comes from the public or the press,” Inzano said. “We will be monitoring how the law is used and continue to be committed to conversations about the very real harm caused by doxing.”
Glennon said the U.S. Supreme Court has already made it clear that attempts to “chill” free speech are prohibited.
“This law clearly chills free speech,” he said. “I already know personally of three people who write and speak on public issues who are now concerned they must be silent on some matters or be sued. Under this law you could be sued even for entirely truthful statements about trivial matters that the law includes under its ridiculously broad definition of ‘personally identifiable information.’”
Gong-Gershowitz couldn’t be reached for comment.
But she told the Chicago Tribune the law has a narrow and specific focus that requires a plaintiff to prove that someone intended for them to suffer death, physical injury or become a stalking victim.
“That’s a high bar,” Gong-Gershowitz said in comments published by the Tribune. “We’re talking about the kind of conduct that would give rise to somebody being in fear of their life.”
Goldenberg called the law a carefully “nuanced, victim-centered approach.”
Goldenberg also brushed aside concerns the law could be misused to abridge free speech or the constitutionally guaranteed freedom of the press, by, for instance, allowing governments to decide who should be a journalist protected by the First Amendment and who is not.
“The bill was carefully drafted not to limit free speech or other forms of expression and establishes the two-pronged threshold, (prior knowledge, reckless disregard, harm caused), before damages can be awarded to a victim,” he said.
All those contacted by The Cook County Record declined to speculate if the constitutionality of the new law would be legally challenged in court.
Jonathan Bilyk contributed to this report.