Courts across the country are grappling with the degree of protection to be accorded anonymous Internet speech. In particular, they are struggling to sculpt a set of guidelines regarding the showing that a private party must make in order to compel the identification of anonymous Internet speakers.
This issue has arisen in a variety of contexts, ranging from anonymous participation in Internet chat rooms to anonymous postings on Internet message boards, to anonymous e-mail harassment. Indeed, according to an amicus brief filed by America Online (AOL) earlier this year, during the year 2000, “AOL received approximately 475 civil subpoenas, the vast majority of which sought identity information about an AOL subscriber with a particular screen name.” See Brief Amicus Curiae of America Online Inc. at 2, submitted in Melvin v. Doe, nos. 2115 WDA 2000 and 2116 WDA 2000 (Pa. Super. Ct., Pittsburgh Dist., Feb. 24, 2001).
This trend was also noted in a recent story in the Wall Street Journal, which reported that “[l]awsuits against Internet postings have become common in the past few years, especially at companies facing financial troubles.” See Nicole Harris, “MicroStrategy Tackles Naysayers on All Fronts,” Wall St. J., May 10, 2001, at B5.
Regardless of whether particular anonymous online speech is merely a juvenile effort at humor or is truly defamatory or otherwise tortious, a court facing a subpoena that would strip the speaker of his or her anonymity must consider two fundamental questions. First, to what extent does the First Amendment protect an individual’s anonymous online speech? Second, on a practical level, what showing must be made by a private party seeking to discover the identity of anonymous Internet users through the enforcement of a civil subpoena?
‘2TheMart.com’ arose from securities fraud case
These issues were recently addressed in a significant decision issued by the U.S. District Court for the Western District of Washington. See Doe v. 2TheMart.com Inc., No. CO1-453Z, 2001 U.S. Dist. Lexis 5318 (W.D. Wash. April 26, 2001).
2TheMart.com arose from a subpoena issued in a securities fraud case involving alleged fraud on the market. In that case, the defendant asserted as an affirmative defense that no act or omission by them caused the plaintiffs’ injury. Rather, it alleged that changes in the company’s stock price were caused by individuals who manipulated the price through postings on an Internet bulletin board.
2TheMart.com, to bolster its defense, served a subpoena on Infospace Inc., the company that operated the bulletin board at issue, demanding, among other things, the identity of 23 specific anonymous Internet users who posted messages on the bulletin board or who communicated via the Internet with users who posted such messages. These 23 speakers used a variety of pseudonyms, including “Truthseeker” and “NoGuano.”
As might be expected given the speakers’ chosen pseudonyms, some of the messages were less than flattering to the company, while others were downright nasty. For example, one message posted by Truthseeker stated that 2TheMart.com “is a Ponzi scam that Charles Ponzi would be proud of…. The company’s CEO, Magliarditi, has defrauded employees in the past. The company’s other large shareholder, Rebeil, defrauded customers in the past.”
After receiving the subpoena requesting information that would strip Truthseeker and the others of their anonymity, InfoSpace notified the users by e-mail about the subpoena.
NoGuano, remaining true to his assumed name, moved to quash the subpoena on the ground that its enforcement would violate his First Amendment right to speak anonymously over the Internet.
Applying First Amendment to anonymous Net speech
The court’s analysis of NoGuano’s motion to quash began with a primer on First Amendment law. Among other things, the court explained that “[a] court order, even when issued at the request of a private party in a civil lawsuit, constitutes state action and as such is subject to constitutional limitations.” Id. at *8. Moreover, the court noted that speech over the Internet is protected by the First Amendment, as is the right to speak anonymously.
Accordingly, the court explained, “[p]eople who have committed no wrongdoing should be free to participate in online forums without fear that their identity will be exposed under the authority of the court.” Id. at *11. “If Internet users could be stripped of that anonymity by a civil subpoena enforced under the liberal rules of civil discovery, this would have a significant chilling effect on Internet communications and thus on basic First Amendment rights.” Id. at *13.
Nevertheless, the court also acknowledged that the right to speak anonymously over the Internet is not absolute. It determined, however, that “discovery requests seeking to identify anonymous Internet users must be subjected to careful scrutiny by the courts.” Id. at *13-14. The court then turned its attention to translating the principle of “careful scrutiny” into a practical, day-to-day standard.
After surveying other decisions that have addressed similar issues, the court adopted a four-factor balancing test for “evaluating a civil subpoena that seeks the identity of an anonymous Internet user who is not a party to the underlying litigation.” Id. at *18.
These four factors “are whether: (1) the subpoena seeking the information was issued in good faith and not for any improper purpose, (2) the information sought relates to a core claim or defense. (3) the identifying information is directly and materially relevant to that claim or defense, and (4) information sufficient to establish or to disprove that claim or defense is unavailable from any other source.” Id. at * 1 8-19.
Ultimately, the court concluded that on the facts before it, disclosure of the anonymous speakers’ identities was unwarranted. In reaching this conclusion, the court noted that the overbreadth of the initial subpoena, which would have required not only identity information, but also the disclosure of personal e-mails and other irrelevant personal information, weighed against a finding of good faith.
The court further noted that the information sought related to only one of 27 affirmative defenses asserted by the defendants and that this affirmative defense was merely a generalized assertion of no causation.
In addition, the court determined that because the anonymous Internet speakers in 2TheMart.com were not parties to any claim, their identities were not required for the litigation to proceed, unlike a situation in which a case is brought against an unknown defendant.
Finally, because this case involved alleged stock manipulation through Internet postings, the court noted that 2TheMart.com could prove its point merely by demonstrating what was anonymously said and when, and by then comparing the timing of those statements to fluctuations in the company’s stock price. In order to prove its affirmative defense, therefore, the specific identities of the anonymous speakers were not required. Accordingly, the court quashed the subpoena.
Potential ramifications of ‘2TheMart.com’ ruling
Judging from the many references within 2TheMart.com to its significance and to the novelty of the issues raised, 2TheMart.com was clearly intended to be a landmark First Amendment case.
But what will its long-term significance really be? Perhaps not as great as a first glance may indicate. Viewed in hindsight, the outcome in this case can appear to have been driven more by tactical miscues than by fundamental principles of law.
After all, what if 2TheMart.com had brought a direct action against the anonymous Internet users, alleging, for example, corporate defamation, rather than seeking to discover their identities through a subpoena in a wholly unrelated civil lawsuit? The information obtained through such a direct action could then have been used in the securities fraud case.
Or what if 2TheMart.com had drafted its initial subpoena more narrowly, so as not to incur the court’s wrath, or if it had been more focused in its affirmative defenses, rather than throwing out 27 different affirmative defenses, shotgun style? Clearly, it is not difficult to imagine scenarios even in light of the 2TheMart.com standard in which disclosure might have been ordered.
A less stringent standard in ‘America Online’ case
Indeed, in a case litigated last year in a state court in Virginia, a plaintiff sought to compel the identification of five John Doe defendants who had allegedly defamed it in Internet chat rooms. See In re Subpoena Duces Tecum to America Online Inc., No. (Misc. Law) 40570, 2000 Va. Cir. Lexis 220 (Va. Cir. Ct. Jan. 31, 2000).
As in 2TheMart.com, the issue came before the court on a motion to quash a subpoena directed to the Internet service provider in this case, America Online.
Applying a less stringent standard than 2TheMart.com, however, the court held that a nonparty Internet service provider should be ordered to provide information concerning the identity of a subscriber “(1) when the court is satisfied by the pleadings or evidence supplied to that court (2) that the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim or conduct actionable in the jurisdiction where suit was filed and (3) the subpoenaed identity information is centrally needed to advance that claim.” id. at *37.
Applying this standard, the court denied a motion to quash the subpoena, explaining that “this Court finds that the compelling state interest in protecting companies…from the potentially severe consequences that could easily flow from actionable communications on the information superhighway significantly outweigh [sic] the limited intrusion on the First Amendment rights of any innocent subscribers.” Id.
Meanwhile, in Columbia Insurance Co. v. Seescandy.com, 185 E.R.D. 573 (N.D. Cal. 1999), another district court faced a situation involving tortious online conduct, including trademark infringement, that was allegedly committed by certain unknown John Doe defendants.
As in 2TheMart.com and In re Subpoena Duces Tecum, the court first noted that the “need to provide, injured parties with an [sic] forum in which they may seek redress for grievances … must be balanced against the legitimate and valuable right to participate in online forums anonymously or pseudonymously.” Id. at 578.
Accordingly, it, too, adopted a multipronged test for evaluating discovery requests directed at revealing an unknown defendant’s identity. Under this test, the plaintiff must identify the unknown defendant with sufficient specificity so that the court can determine if the defendant is amenable to suit in federal court, and the plaintiff must satisfy the court that the case could withstand a motion to dismiss. Additionally, the plaintiff must identify all previous steps taken to locate the elusive defendant and must file a “request for discovery” with the court, justifying the need for the information requested and identifying a limited number of people or entities on whom discovery is likely to be served.
In Seescandy.com, the court concluded that all of these prongs, except for the final one, had been satisfied. The court granted the plaintiff additional time to satisfy the final prong.
Limited showing may still overcome Net anonymity
Although In re Subpoena Duces Tecum and Seescandy.com both involved compelled disclosure of the identity of an unknown defendant — rather than the identity of an unknown third party as in 2TheMart.com — the findings in each of these cases are similar. Internet anonymity is protected by the First Amendment, but that protection can be overcome through a fairly limited showing.
A request to lift the veil of Internet anonymity must be made in good faith in connection with a core legal position, and the information sought must be necessary to establish that position. In addition, the request should be narrowly tailored, and the information sought should be unavailable elsewhere.