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Shearman & Sterling is trying to root out the identity of someone — it suspects a current or recent employee — who posted a “highly offensive” message about a firm staff manager on community Web site craigslist.org. The firm is relying on a tool that’s become increasingly common among companies and others targeted by anonymous Internet users: filing suits against John or Jane Does that can help identify them. The New York-based giant sued a Jane Doe in San Francisco Superior Court late last month based on a copy of the craigslist posting she allegedly e-mailed to the manager. “This was a hateful and racist e-mail that verbally assaulted one of our staff members. And we have a responsibility to protect our staff and to respond appropriately,” said Shearman & Sterling spokeswoman Jolene Overbeck. A lawyer with the Electronic Frontier Foundation, a nonprofit that advocates for civil rights in cyberspace, says suits against anonymous Internet users are common now. Most often, the plaintiffs sue for defamation for something posted on an Internet message board, then use subpoenas to try to figure out the author’s identity, said Kurt Opsahl, a staff attorney at the San Francisco-based nonprofit. Shearman & Sterling’s suit is a little different. Rather than focus on the posting under craigslist’s Rants and Raves section, the firm is basing trespass and breach of contract claims on the e-mail its staff manager received — at his “shearman.com” account. By sending the e-mail to a Shearman address, “Jane Doe deliberately and wrongfully misused and caused the continuing misuse of Shearman & Sterling’s Internet resources,” the suit contends. The firm also claims she breached a contractual promise not to use those resources — or cause someone else to use them — for receiving, delivering or storing e-mail that’s “abusive and harassing, or hateful toward an individual � on the basis of race or sexual orientation.” “We have a clear process for following up on any activity of that sort through our HR department,” said Shearman’s Overbeck. “We expect that it will be resolved within the firm.” Craigslist founder Craig Newmark says his company is “passionate about the Bill of Rights, but equally passionate about dealing with bad guys.” “If somebody asks us to breach privacy in any case, we do insist that due process be followed,” Newmark said, and that usually means a subpoena. It’s usually easy for a plaintiff in a Doe case to issue one, though the anonymous person can ask a court to quash it if they know about it, say Opsahl and Suchon Tuly, an associate at Perkins Coie who specializes in Internet law. In Opsahl’s observation, when trial judges in Santa Clara County (home to Yahoo.com and its share of Doe suits) have considered such motions, they’ve “widely followed” principles like those in Columbia Insurance v. Seescandy.com, 185 F.R.D 573. U.S. District Judge D. Lowell Jensen, of the Northern District of California, wrote in that 1999 opinion that the need to provide injured parties with a forum for addressing grievances “must be balanced against the legitimate and valuable right to participate in online forums anonymously or pseudonymously.” While Opsahl said Web sites commonly alert users if they’re the subject of a subpoena, he voiced concern about what might happen if someone isn’t notified. “Then you have a situation where they would have a right to quash it, but no opportunity.”

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