The House of Representatives is on the verge of passing a donor disclosure law that will amplify one of the ugliest realities of our cultural and political moment – the reputational, economic and physical attacks promoted by “doxing.”
This is the practice of posting a target’s personal information online so he or she can be harassed or worse. In December, someone upset over Donald Trump’s loss put up a website posting the private email address, home addresses, and pictures of the homes of the Georgia election officials and employees of a state vendor who had a role in certifying the 2020 presidential election vote totals. In case you didn’t get the point, the website overlaid their photos with a rifle’s crosshairs.
In 2018, a congressional intern was arrested after posting the home addresses of several Republican senators during the Brett Kavanaugh hearings. Black Lives Matters reports that white supremacist groups are monitoring their channels on the encrypted Telegram app and posting personal information of BLM volunteers.
This practice is particularly effective in punishing donors to politically controversial causes. In 2009, small donors to Proposition 8, a California ballot measure opposing same-sex marriage, received death threats and envelopes containing white powder. Their names and ZIP codes were helpfully overlaid on a Google Map.
Concerns about the need for privacy of financial donors extends back to 1958 when the NAACP successfully argued before the U.S. Supreme Court that Alabama had violated its constitutional rights by issuing a subpoena for financial records, including names and addresses of the Association’s members. NAACP v. Alabama became a landmark civil rights decision, with Justice John Marshall Harlan II stating that immunity from state scrutiny is related to the rights of individuals “to pursue their lawful private interests privately and to associate freely with others.”
It will soon be back to the future, however, if certain provisions of the For the People Act, HR 1, become law. Buried within HR 1’s 791 pages is a provision that would require any group that spends $10,000 or more to make “public communications” on a range of policy and political issues to disclose donors’ identities. Any group that spends money on online communications, including tweets, in favor of policy issues would be subject to onerous reporting provisions. Ostensibly created to promote financial transparency, HR 1 has the clear potential to chill speech and undermine freedom of association.
California state law already requires charitable organizations to disclose their biggest donors to the state. A lawsuit, Americans for Prosperity Foundation v. Xavier Becerra, resulted in a preliminary injunction to bar implementation of that law. The district court ruled in favor of the foundation on the basis of established precedent under NAACP v. Alabama. The U.S. Court of Appeals for the Ninth Circuit reversed the district court’s holding, and the Supreme Court is now reviewing the decision.
In New Jersey, the American Civil Liberties Union in 2019 challenged the constitutionality of a law requiring all social welfare organizations to disclose information about their donors. The ACLU sued, saying the law that would enact “vague and overbroad disclosure requirements for organizations that engage in public advocacy work, including even those that do not engage in electoral politics.”
An amicus brief in the Supreme Court case submitted by Protect The 1st and the Pacific Research Institute notes that doxing “has evolved from a tool of sophisticated hackers into a mainstream tactic for fighting the current political and culture wars.” Beyond doxing is the real threat that the employers donors work for will be punished by loss of state business.
The simple reality of state or federal governments possessing both the power to compel disclosure and to acquire association membership or donor lists en masse would give any politically motivated administration the ability to harass its opponents.
With the advent of digital technology, privately disclosed information could be accessed through a breach in computer security or easily released online by an internal leaker. The lower court’s preliminary injunction in the California case was issued on the notion that a plausible breach could lead to threats or actual violence against donors. In today’s hyper-politicized world, where people are “cancelled” every day, it is not difficult to imagine that unintentional exposure of donor or member lists will lead to serious harm.
HR 1 is marketed as a bill to repair American democracy. But the disclosure provision will empower both politicians and trolls to chill speech, suppress political disagreement and organize mobs to punish anyone they don’t like.