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An e-mail that started as a prank has sparked a case before the Maine Supreme Court that will test to what extent anonymity is protected on the Internet. Last Christmas, a prankster sent an anonymous e-mail to his neighbors on Great Diamond Island, a small community in Maine. The butt of the joke was fellow neighbor Ronald Fitch, who owns several homes on the island. Fitch and his wife were portrayed in a disparaging cartoon caricature that was sent anonymously by the address “FitchIsland.” The Fitches sued the sender, known in court papers as John or Jane Doe, in Cumberland County Superior Court. They allege misappropriation of identity, intentional infliction of emotional distress and portrayal of them in a “false light.” Fitch v. Doe, No. CV-04-078. John Doe retained a lawyer and is fighting to remain anonymous. While law enforcement often seeks to reveal the identity of anonymous e-mailers for criminal prosecution, similar requests in tort claims are rare, according to the lawyers involved in the suit. On May 12, the superior court issued a four-page order instructing Time Warner, the Internet service provider (ISP), to reveal the sender’s identity. The court relied on Time Warner’s subscriber agreement, noting that John Doe had been adequately warned that his identity could be disclosed in legal actions. It was also satisfied that Fitch had presented a showing of good cause that he had been harmed and that Doe’s identity was central to the advancing of his legal claim. ‘Cartoon commentary’? John Doe’s attorney filed a notice of appeal on May 17 and the case moves on to the Maine Supreme Judicial Court. “Cartoon commentary is fair game within free speech,” said John Doe’s lawyer, George J. Marcus of Marcus, Clegg & Mistretta in Portland, Maine. Marcus contends that the sender’s address of “FitchIsland” was not stolen identity but a public commentary on the number of houses the Fitches have bought and renovated on the island. The Fitches’ lawyer, Thomas Connolly, a solo practitioner in Portland, asserted that the Internet affords no special privacy protection and does not shield users from tort claims. He speculates that ISPs have revealed identity in hundreds of cases, both criminal and civil. “The Internet is not highly protected evidence like medical records,” Connolly said. “Time Warner has a routine waiver form. Everyone waives the right to non-disclosure [if Time Warner is sued].” Jonathan Bick, who teaches Internet law at Rutgers and Pace University schools of law, said the privacy waiver that John Doe signed in his subscriber agreement with Time Warner should have little significance in this case. The waivers are standard regulatory compliance with the Federal Privacy Act that prevents ISPs from selling user’s information without consent, Bick said. Time Warner spokesman Mark Harrad said the company protects the privacy rights of customers and will not reveal an identity without a court order.

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