“I struggle to see a legit basis for this,” one First Amendment expert told us.
Pennsylvania attorney general Josh Shapiro is probing Gab’s relationship with its new domain name provider, Epik. A subpoena sent to Epik, dated Wednesday, seeks “any and all documents which are related in any way to Gab.”
In a statement to Ars, Gab described the investigation as a “baseless, political, and emotionally-driven witch hunt.”
Gab has been in the news recently because the perpetrator of last month’s mass shooting at the Tree of Life Synagogue appears to have been a Gab user. Gab’s strong free-speech policies have made the site popular with antisemites whose hate speech isn’t welcome on mainstream social media platforms. An account with the same name as the shooting suspect has featured a number of antisemitic Gab posts—including one posted just hours before the shooting.
GoDaddy responded to the shooting by refusing to continue hosting Gab’s domain—forcing the site offline for about a week. Gab came back online after a lesser-known domain provider, Epik, agreed to take Gab as a customer. Now that decision has earned Epik a broad subpoena from the Pennsylvania attorney general’s office.
Shapiro’s subpoena asked that the letter be kept confidential, but Gab defied that request, posting screenshots of the subpoena on the Gab Twitter account Wednesday afternoon. Gab removed the screenshots from its Twitter account a few hours later.
“The news of the subpoena was not intended for public consumption,” wrote Epik CEO Rob Monster in an email statement to Ars. “We are cooperating with their inquiry.”
It’s not clear what Shapiro is investigating
Eric Goldman, a legal scholar at Santa Clara University, told us that the law is clear that Gab would not be liable for hosting content from the Pittsburgh shooter. Not only are the posts likely protected by the First Amendment, but a law called Section 230 gives service providers like Gab—not to mention upstream service providers like GoDaddy and Epik—an extra layer of protection against liability for user-submitted content.
So then what is Pennsylvania’s attorney general investigating? Shapiro’s office hasn’t returned emails and a phone call asking about that. But two legal scholars I talked to for this story couldn’t think of a legitimate reason for seeking these kinds of documents.
“I struggle to see a legit basis for this,” said Ken White, a First Amendment attorney and the proprietor of the popular Popehat blog.
Seeking information about Gab’s DNS provider “doesn’t make any sense at all,” legal scholar Eric Goldman told us.
In another now-deleted tweet, Gab described the subpoena as a form of harassment. Could this be an attempt to punish Epik for doing business with Gab? Goldman described this as plausible and said that this kind of tactic could raise First Amendment issues.
Goldman pointed to a 2015 case where Thomas Dart, the sheriff for Chicago’s Cook County, wrote letters to major payment processors asking them to “voluntarily” drop Backpage as a customer. Backpage had become a leading venue for advertising commercial sex services, and Dart accused Backpage of profiting off of sex trafficking.
A federal judge smacked Dart down, finding that Dart’s campaign had violated Backpage’s First Amendment rights. Dart’s lobbying campaign was informal, and it had targeted third parties instead of Backpage directly. Nevertheless, the judge found that Dart had harmed Backpage’s First Amendment rights.
Goldman doubted that an attorney general sending out subpoenas would be enough, on its own, to violate the First Amendment. But if it were part of a broader campaign to discourage providers from doing business with Gab, that could raise significant free speech concerns.
But there may not be much Gab can do beyond waiting to see what Pennsylvania’s attorney general does next, White told us.
“Subpoena power is incredibly broad and authorities can go on pure fishing expeditions,” White said. “There are few remedies to limit the scope of an investigation when it’s using measures like this.”