Donor Privacy and the Continued Debate Around Doxing

​Following conspicuous leaks of taxpayer information by the IRS and donor information by the New York attorney general’s office, a new Senate bill sponsored by Sens. Todd Young and James Lankford would increase penalties for unauthorized donor disclosure from $5,000 up to $250,000.
 
“In recent years, donor privacy has been threatened on too many occasions,” Sen. Young said. “This legislation will address the disclosure of donor data to better protect both charitable organizations and their donors.” But is such legislation needed?
 
Our answer is “yes.” Challenges to donor privacy threaten a bedrock First Amendment principle in place since 1958. In that year, the U.S. Supreme Court held that the State of Alabama’s efforts to subpoena the NAACP’s membership records would threaten donors who only wanted to exercise their constitutional right to free association.
 
Fast forward to 2021, when the U.S. Supreme Court struck down a California requirement for compelling donor disclosure for nonprofits. In the majority opinion, Chief Justice Roberts emphasized the entrenched constitutional interest in donor privacy, noting “it is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on free­dom of association as [other] forms of governmental action.”
 
That ruling hasn’t dissuaded some states. Arizona in 2022 passed Proposition 211, the “Voters Right to Know Act.” That measure was marketed as requiring disclosure of political “campaign” donors. Instead, it targets any group that speaks out on public policy issues – including nonprofits. It opens the door not just to self-censorship by those who may otherwise be inclined to donate to a cause, but also the possibility of doxing – using online resources for physical, emotional, or financial intimidation, harassment, and cancellation.  
 
Donor disclosure has lately been cast as a left-leaning cause – particularly in the wake of Citizens United. In reality, both sides of the aisle are getting in on the action. In the House, two separate GOP-sponsored bills would require donor disclosure by tax-exempt, non-profits in the event they receive donations from foreign nationals. One such bill, introduced by Rep. Nicole Malliotakis (R-NY), would prohibit non-profits that receive foreign donations from donating to a political campaign for eight years.
 
We agree in principle that there is a compelling public interest in non-profits disclosing whether they receive foreign contributions. But naming individual contributors can lead to a host of constitutional concerns – not to mention the possibility of doxing and personal attacks.
 
Not long ago, Mozilla CEO Brendan Eich was forced out of his job when the California Attorney General mandated the disclosure of donors in support of Proposition 8, which supported traditional marriage. Small donors received death threats and envelopes containing white powder. Their names and ZIP codes were helpfully overlaid on a Google Map.
 
Exposure of donor information can also heighten donors’ fears that they, or their businesses, will be singled out by vengeful regulators with political motivations or by activist boycotts. While disclosure efforts are typically couched in the language of protecting democracy, they inevitably empower political trolls to chill speech, suppress disagreement, and organize mobs to punish those they don’t like.
 
The Senate bill takes a thoughtful approach. Officials who leak protected donor information should face legal consequences. And perhaps non-profits should disclose whether they receive foreign contributions, as House bills seek to achieve. Anything more onerous risks the well-established constitutional rights of Americans to, in the words of Justice John Marshall Harlan II, “pursue their lawful private interests privately and to associate freely with others.”