Georgia's 'anti-doxxing' legislation upsets the balance between free speech and privacy

Yahoo

18-03-2025

Guest commentary warns Senate Bill 27, sponsored by Sen. John Albers (right) and pushed by Sen. Randy Robertson could criminalize sharing identifying information about someone that is already public. Stanley Dunlap/Georgia Recorder (File)
No one – whether they are a private figure or a public official – wants to be harassed online with their private information paraded about for others to use to target them or their family members.
For instance, Eliud Bonilla, an American citizen, was temporarily removed from the voter rolls in Virginia due to a clerical error. Even though his voter registration was restored, a watchdog group published his personal information online, suggesting that he was a 'noncitizen voter' who had committed voter fraud, causing him to fear for his safety. This sort of thing shouldn't happen.
Unfortunately, the legislative fix that the Georgia General Assembly is working on – Senate Bill 27 – isn't threading the needle quite right. In its current form, it would prohibit large amounts of truthful speech while still not effectively safeguarding people's personal information. Moreover, SB 27 would largely duplicate already existing laws that criminalize much of the conduct the bill seeks to prevent.
The legislation makes it a crime to electronically post or transmit another person's identifying information, including their name or where they work, if that information is 'reasonably likely' to be used by another party to cause the identified person 'reasonable fear' of physical injury, significant economic injury, or mental anguish.
There are several concerns with this expansive definition of criminal liability. First, it outlaws sharing identifying information that is already public. These days, people publicly post information about themselves online all the time, whether it's photos on Instagram or their employment history on LinkedIn. Yet, another person who shares this already-public information could still be criminally charged under SB 27 if a third party uses it to harass or intimidate the identified party.
This leads to a second problem with the bill: It requires a person sharing identifying information about another to predict what a third party is 'reasonably likely' to do with it. For instance, someone who posts a critical comment in a Facebook group about a local official that includes the official's name and where they work, may find themselves arrested under SB 27 if another person in the group (whom the poster is unaware of) then sends violent hate mail to the official. SB 27 also contains no requirement that the third party's malicious use of the identifying information occur close to the time when the poster shared it. So, even if the hate mail was sent months after the post was made, the poster could still be charged. The uncertainty of trying to forecast the future actions of unknown third parties will leave would-be critics no choice but to stay silent if they want to avoid criminal liability under SB 27.
A third problem with the bill is that it does not require actual injury to result from the posting of identifying information. It only requires that the information be used in a manner that would cause the identified person to have 'reasonable fear' of stalking or physical harm, or to experience significant economic harm or emotional distress. This adds yet another layer of unpredictability about what can lawfully be shared because of the subjective nature of what amounts to grounds for 'reasonable fear.'
Taken together, SB 27's defects make it nearly impossible for would-be speakers to distinguish what information about another person can be electronically transmitted versus what could land them in jail. This will chill far more speech than the drafters of the bill likely meant to deter. As the United States Supreme Court has long recognized, laws with uncertain meanings as to what speech is prohibited 'inevitably lead citizens to steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.'
To be sure, SB 27 requires that the person transmitting the personally identifying information do so with 'reckless disregard' for how others might use the information, but that provides no safe harbor from criminal prosecution. 'Reckless disregard' can easily be alleged, even if it cannot ultimately be proven. Similarly, the bill contains a 'constitutional savings clause' that says it's not a crime if you post the information in furtherance of constitutionally protected activity. But, this is only an affirmative defense the poster will still have to prove. People will choose not to exercise their First Amendment right to speak, rather than risk fighting a criminal prosecution.
Finally, SB 27 is largely duplicative of other Georgia laws that already prohibit the same conduct the bill seeks to deter. For instance, Georgia common law already recognizes the tort of publication of private facts. Georgia Code § 16-11-39.1 classifies harassing as any form of electronic communication being used to harm others. And Georgia Code § 16-11-37 punishes an individual who makes a threat of violent crime toward others. With such laws already on the books, SB 27 would be detrimental to First Amendment rights without actually providing significant additional protections to potential crime victims.
The best course of action would be for the Georgia Legislature to reject SB 27. Short of that, the bill should be narrowed to restrict only the posting of identifying information that is not otherwise publicly available (e.g., bank account, Social Security, or unpublished cellphone numbers); require that the poster intentionally share the information for the sole purpose of causing violence or harassment toward the individual identified; and require that the sharing of the information cause actual harm (either physical, emotional or financial) to the identified person. Georgia lawmakers should take a critical look at SB 27 and either set it aside or significantly narrow it.
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