The Washington PostDemocracy Dies in Darkness

Opinion Utah ‘anti-doxxing’ bill would outlaw mentioning a person’s name online ‘with intent to offend’

Utah state Rep. David E. Lifferth has proposed H.B. 225, which (among other things) aims to criminalize “doxxing.” Doxxing, defined in the American Heritage Dictionary as “To publicly disclose the identity, address, or other personal details of (someone), especially as a form of online harassment,” can indeed be bad, and perhaps even criminal (for instance, if it reveals information that is largely useless except to commit crimes, such as the person’s Social Security number, though even that’s complicated).

But sometimes it can be just fine, for instance if someone publicly identifies a legislator who one argues is doing something bad, hoping that the legislator will feel enough heat from his constituents that he will see the light. And sometimes it can be hardball but still constitutionally protected, for instance if someone identifies a real estate agent who is supposedly acting unethically and urges people to call that real estate agent (see Organization for a Better Austin v. Keefe (1971)), or identifies shoppers who are refusing to comply with a boycott, and implicitly urges their friends to ostracize them (see NAACP v. Claiborne Hardware Co. (1982))).

Now have a look at how the anti-doxxing part of Rep. Lifferth’s bill is written:

(2) A person is guilty of electronic communication harassment and subject to prosecution in the jurisdiction where the communication originated or was received if with intent to annoy, alarm, intimidate, offend, abuse, threaten, harass, frighten, or disrupt the electronic communications of another, the person …
(e) electronically publishes, posts, or otherwise makes available personal identifying information in a public online site or forum.

And “personal identifying information” is defined to mean “the same as that term is defined in Section 76-6-1102,” which in turn provides that this information “may include” a person’s:

(a) name;
(b) birth date;
(c) address;
(d) telephone number;
(e) drivers license number;
(f) Social Security number;
(g) place of employment;
(h) employee identification numbers or other personal identification numbers;
(i) mother’s maiden name;
(j) electronic identification numbers;
(k) electronic signatures under Title 46, Chapter 4, Uniform Electronic Transactions Act;
(l) any other numbers or information that can be used to access a person’s financial resources or medical information, except for numbers or information that can be prosecuted as financial transaction card offenses under Sections 76-6-506 through 76-6-506.6; or
(m) a photograph or any other realistic likeness.

As you can see, the list isn’t limited to material that is solely or chiefly usable “to access a person’s financial resources” — names and places of employment are also usable for many other purposes. Again, if the bill were limited to Social Security numbers and perhaps a few other items, it might be constitutional (see pp. 1146-49 of this article); but it is much broader than that.

If this bill is enacted, saying that Lifferth, who works part-time in the Utah legislature (and also works for the Family Search organization), is foolish/evil/etc. would be a crime, so long as a jury concludes this was said with the “intent to” (among other things) “annoy,” “offend” or “abuse” Lifferth. Hard to reconcile that with the First Amendment, it seems to me.