A subpoena against chat service Discord could reveal the identities of many of the neo-Nazis, white supremacists, and other far-right organizers involved in the planning of the disastrous 2017 Unite the Right rally in Charlottesville that resulted in widespread violence, three deaths, and scores of injuries.
Per the Washington Post, a federal lawsuit by people injured during the events of the rally against its “alleged organizers” has hit a milestone. Discord, which was founded in 2015 as a chat app for gamers, quickly became a platform for psuedo-anonymous communication by numerous communities. That included many of the white supremacists allegedly present in Charlottesville, who might soon lose that anonymity.
Earlier this year, attorneys for the plaintiffs filed a subpoena asking Discord to turn over information including chat logs and the identities of users in a Unite the Right planning server. They intended to prove that the organizers of the rally were not, as they have claimed, the victims of overzealous counter-protesters and do-nothing police officers, but intentionally planned to cause as much mayhem as possible. Per the Post, they were opposed by an anonymous user with the handle of “kristall.night” (an obvious reference to Nazi purges of Jews), who filed a countersuit claiming turning over the data would threaten her right to freedom of association and “anonymous speech.”
U.S. Chief Magistrate Judge Joseph C. Spero, who is overseeing the case, ruled on Monday that the plaintiffs have a right to know the account information of over 30 users on the server. That should give them further clues as to whether those people subsequently attended the rally, which could help prove their claims of malicious intent. However, he also ruled the Stored Communications Act prevents him from releasing the actual contents of the messages to the plaintiffs.
The Post writes that Discord server was used to spread racist propaganda and discuss everything from what kinds of improvised weaponry participants should bring to whether the participants could secure “fedora shaped helmets”:
On a Discord server called “Charlottesville 2.0,” they planned everything from car pools, dress code and lodging in Charlottesville to how one might improvise weapons in case of a fight. Some suggested using flag poles as a makeshift spear or club.
“If you don’t have a flame thrower you’re wrong. Just oven yourself and get it over with,” a user named Athena Marie wrote Aug. 4, 2017.
“A real man knows how to make a shield a deadly weapon,” another user named O.W. von Diez said.
“FIGHT UNTIL THE LAST DROP,” another user posted.
Kristall.night appeared to be heavily involved in the planning, the paper wrote, with chat logs showing she advised other members of the server to purchase “self defense insurance,” coordinate to form a “shield wall,” and not to bring “weapons you’re inexperienced with using in a fight in a crowded area.” She also raised the question of whether another participant could secure “fedora shaped helmets.”
While Spero gave the plaintiffs access to the account data, he ruled it must be restricted to a few people as “highly confidential.” That means it won’t be revealed to the general public, just attorneys for the plaintiffs and court personnel present during proceedings. The Post wrote:
“While even limited disclosure of this information may create some chilling effect,” Spero wrote, “the protections available through a designation of ‘highly confidential’ mitigate that harm, and Plaintiffs’ interest in this information, which is relevant to testing their claims of an alleged violent conspiracy based on racial and religious animus, outweighs the potential harm to [Jane Doe’s] right to association.”
... In his 28-page ruling, Spero appeared to acknowledge why Discord might have been so appealing to members of the so-called alt-right in the first place: “It is clear that many members of the ‘alt-right’ feel free to speak online in part because of their ability to hide behind an anonymous username,” he wrote.
Lawyers for the plaintiffs turned their attention to the chat logs after Unicorn Riot, an independent media collective, leaked hundreds of thousands of incriminating messages from the server in the form of a searchable database. (Numerous attendees at the rally have separately had their identities revealed after appearing in the ubiquitous media footage of the event.)
In the months after the rally, Discord banned a number of servers and users promoting white supremacy, citing rules against harassment and threats of violence.
Marc Rendazza, an attorney specializing in First Amendment issues, is representing kristall.night. He told the Post that resisting the subpoena was a question of protecting the right of people to privacy in their political associations, adding “... People don’t get to do that anymore. You have to be hounded out of your apartment, out of your job, out of whatever it is you have, if you have the audacity to have an unpopular political belief.”
Rendazza is still considering an appeal, according to the Post.
“The court’s decision to limit disclosure to these select few groups strikes me as a recognition of the potential First Amendment harms that would result if the information was publicly disclosed,” Electronic Frontier Foundation staffer Aaron Mackey told Wired. “The court recognized that even at this highly charged and emotional moment, the First Amendment limits when private litigants can unmask anonymous online speakers.”
Mackey did caution, however, that the same tools used to unmask kristall.night could be used against “historically powerless individuals and groups to intimidate, harass, and silence them... We need robust First Amendment protections for all online speakers, even those whose views we loathe and recognize as both wrong and dangerous.”
Update 10:25pm ET: In a statement to Gizmodo, Discord reiterated that it has taken action to remove servers and users promoting harassment and violence, and that it would continue to be vigilant against their return in the future. However, they declined to comment on the ongoing litigation:
Discord has a Terms of Service (ToS) and Community Guidelines that we require all of our communities and users to adhere to. These specifically prohibit harassment, threatening messages, and calls to violence. Though we do not monitor private messages, we do investigate and take immediate appropriate action against any reported violations. This was the case after incidents in Charlottesville where we swiftly removed servers and users from the platform and took steps to prevent their return. We are closely following any updates in the case and have been in communication with relevant parties over the last seven months, but can’t comment on ongoing litigation. We will continue to be aggressive toward bad actors on our platform.