By Lance Rose
SCARCNet is a non-public electronic network formed in 1990 that "links together a critical mass of tobacco-control advocates across geographic and organizational lines," according to Director of Electronic Advocacy Patricia Mallin. It must be bothering its opponents in the industry; SCARCNet recently faced a full-scale assault on its existence from American Tobacco Company.
The attack arrived obliquely, via a lawsuit in Texas charging two tobacco companies with the wrongful death of a smoker. Among statements during pretrial discovery, an expert witness on tobacco-related health problems who uses SCARCNet mentioned published information available on the network. Given this opening, defendant American Tobacco Company, maker of Lucky Strike cigarettes, among others, served a subpoena on SCARCNet. The company demanded all information in existence about the network – including the identities of all members and funders – and all documents that ever passed through the network. SCARCNet resisted the demand, pointing out that the information cited by the expert witness was compiled entirely from public sources, and that American Tobacco Company had not demonstrated any need for the information.
Such standard defenses aside, the true significance of the subpoena was far more dramatic: if enforced by the court, it could weaken and possibly even destroy SCARCNet. SCARCNet's attorney, David Vladeck, points out that "SCARCNet would not survive if the private deliberations of its members are turned over to their arch opponents – the tobacco industry." He adds: "SCARCNet members are likely to suffer harassment and oppression from the tobacco industry if their identities are associated with SCARCNet."
To prevent such devastating results, the network invoked the First Amendment guarantee of freedom of assembly, which has traditionally protected a group's members' identities and the privacy of its deliberations. The right of assembly made its most famous appearance in 1958, when the Supreme Court used it to protect the identities of NAACP members from the Alabama state government. The precedent has held to this day, and SCARCNet asserts it should apply as readily to groups that meet through electronic networks as to groups that meet in the flesh.
As this issue of Wired goes to press, SCARCNet's protective motion is undecided, and will remain so if the underlying wrongful death case is settled in the near future. But the principle of online membership privacy under the First Amendment has been loudly proclaimed and will become increasingly important as we continue to organize in the electronic realm.
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