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The following discussion thread is an excerpt from an ongoing law.com online seminar “Cyberspace, Privacy and the First Amendment.” For more information on this program and other law.com seminar offerings, please visit www.law.com/seminars. BLAKE BELL, SIMPSON, THACHER, & BARTLETT, NEW YORK, N.Y. There have been at least 120 so-called “corporate cybersmear” lawsuits filed throughout the United States so far. For a partial list, see www.cybersecuritieslaw.com. The classic “corporate cybersmear” involves the posting of demonstrably false statements/rumors to online message boards in an effort to drive the price of a company’s stock down. Companies sometimes respond by filing a lawsuit against the unknown “John Doe” defendants allegedly responsible for the pseudonymous postings. Such lawsuits typically include a claim for defamation. The company then issues a subpoena to the message board host in an effort to obtain information to assist it in identifying the author(s) of the allegedly defamatory posting. Although early in the evolution of these sorts of cases, not all message board hosts provided notice of the subpoena and their intent to respond to the author(s) of the posting, all seem to do so now. Increasingly, national public advocacy groups such as Public Citizen and the Electronic Frontier Foundation (as well as certain chapters of the American Civil Liberties Union) are appearing in such lawsuits on behalf of unidentified “John Doe” defendants and are moving to quash the subpoenas. They argue, in effect, that due process requirements and the fundamental protections provided by the First Amendment to the U.S. Constitution require the courts to perform some assessment of the merits of the plaintiff’s claim before compliance with such a subpoena should be required. So far, these arguments have not carried the day before any court in which they have been made. Most recently a Florida appeals court rejected a petition for writ of certiorari, effectively denying review of a lower court’s decision rejecting these arguments. Recently the Electronic Frontier Foundation made these arguments anew after filing a motion to quash on behalf of a “John Doe” defendant sued in an Ohio state court by AK Steel (formerly known as Armstrong Steel). A question for the panel and for participants: What procedures, if any, should a court follow in deciding whether to require compliance with such a subpoena when the mere act of complying likely will reveal the identity of the “John Doe” defendant who claims a constitutional right to remain anonymous? JEFFREY MORGAN, HALE AND DORR, BOSTON, MASS. The question of how to treat a subpoena in a “John Doe” lawsuit has become more of an issue recently, as more corporations seek to remedy what they believe to be actionable conduct on such online fora as online message boards and chatrooms. Although permissible discovery in litigation is generally quite broad, some courts have tread cautiously with respect to initial discovery in “John Doe” actions. An example of this may be found in Columbia Ins. Co. v. Seescandy. com, 185 F.R.D. 573 (N.D. Cal. Mar. 8, 1999). In Seescandy, the plaintiff insurance company brought trademark-based claims against the registrant of a domain name, but could not ascertain the identity and whereabouts of the defendant to serve process. Citing what it perceived to be the “legitimate and valuable right to participate in online forums anonymously,” the court imposed a four part test that it ordered must be met before a plaintiff should be permitted the ability to issue a subpoena for discovering the identities of anonymous parties. According to the court, the plaintiff must: (1) specify the unknown party with enough accuracy to show that the court has jurisdiction over the defendant; (2) describe all prior steps taken to identify the “John Doe”; (3) show that a suit against the defendant will likely survive a motion to dismiss; and (4) file a request for discovery identifying the persons with information regarding the identity of the defendant. As a practical matter, a plaintiff may not be able to obtain all this information before seeking discovery. Indeed, this Catch-22 situation may serve to make providing this information to the court impossible. Therefore, at least in the Northern District of California, discovering the identities of wrongdoers through John Doe litigation may become extremely difficult, if not impossible. Alternatively, some “John Does” make special appearances through their counsel and move to quash or otherwise dismiss an action — all without revealing their true identities. In Orie-Melvin v. John Doe, the defendant moved to dismiss the complaint against him, filed in Virginia state court, for lack of jurisdiction. The plaintiff in Orie-Melvin, a Pennsylvania state court judge who claimed the anonymous defendant libeled her on a Web site, brought her action in Loudoun County, Virginia because AOL is based there. The plaintiff unsuccessfully sought a subpoena to compel AOL to reveal the identity of the defendant. The court held that it did not have jurisdiction over the defendant, whose only contact with Virginia appeared to be that he posted allegedly defamatory content through AOL’s main server. The court reached this decision without the necessity of the “John Doe” ever revealing his true identity in any filed court document or proceeding. BLAKE BELL, SIMPSON, THACHER & BARTLETT, NEW YORK, N.Y. Last month Justice John C. Wilkins of the Ontario Superior Court issued a ruling in a cybersmear case brought by Irwin Toy Ltd. and its President and CEO, George Irwin. The decision essentially adopted the sort of approach embraced by the Court in the See’s Candy case. These are the only two decisions of which I am aware that explicitly have addressed this issue, but neither requires a determination of the merits of the claim before the subpoena will be enforced. I read both decisions as requiring, in essence, that the claim — as stated in the pleading — be colorable with factual allegations sufficient to demonstrate that there is, in fact, an individual capable of being identified if the court issues process. This sort of hurdle certainly seems to be a low one and most certainly does not seem to be enough for those who represent “John Doe” defendants in such cases. CARL KAPLAN, CYBER LAW JOURNAL, WEB SITE OF THE NEW YORK TIMES, NEW YORK, N.Y. Blake, Good question! It seems to me that under current law, a court cannot employ any special procedures when requiring compliance with a “John Doe” subpoena, even though the discovery process will result in an unmaking of the speaker. After all, libelous speech, even when uttered by an anonymous speaker, is not completely protected by the First Amendment. And a libel complainant has a right to engage in full-throated discovery. To hold things up to conduct a pre-trial trial on the merits of the suit is inefficient, not to say a difficult burden on the complainant. How’s he supposed to establish fault (negligence, malice, whatever) if he doesn’t know who the speaker is and under which circumstances the speaker acquired the info and published it? The ACLU argues in favor of special court procedures in John Doe cases, or else the right to speak anonymously will be imperiled by the mere filing of a lawsuit. I suppose one could make the same argument in another area that I’m familiar with: journalism and confidential sources. But the argument has been a loser. Suppose a confidential source gives me a scoop on a person or company and I print the story. Suppose, too, that the info turned out to be entirely false and defamatory. Suppose, further, the source was negligent and I was negligent. The company comes along and files suit against me, and asks for the name of my source. Does the First Amendment permit me to resist this sort of subpoena? Does it permit me to ask for some sort of pre-trial mini-trial on the merits? The answers are no, I believe. Even though my complying with the subpoena may chill all anonymous sources, I have to comply. (Option II is for me to go to jail and risk a contempt charge. Many journalists do this.) Journalists and others hate this rule and as a result a number of states have passed Shield Laws protecting the forced disclosure of confidential and non-confidential sources. Under NY’s shield law, I think, confidential sources are protected absolutely, and non-confidential ones can only be unmasked if certain conditions are met, e.g., the information is critical; the seeker has tried to get the information in other ways, etc. I think it would be better for the ACLU, EFF and others to lobby for a series of state Shield Laws to protect the disclosure of anonymous Internet critics. Without the new laws, I don’t believe the First Amendment, standing alone, can force courts to adopt new discovery procedures. BARRY HUREWITZ, HALE AND DORR, WASHINGTON, D.C. There are not yet any widely accepted judicial standards for weighing one’s right to speak anonymously against one’s right to obtain relief for defamation. Some would argue that a defendant’s anonymity should be preserved until the plaintiff has established that the challenged statements were, in fact, defamatory. Under this approach, a court might require a John Doe defendant or a third party to comply with a subpoena under seal, while withholding the identity of the defendant — at least until later in the proceeding. CHRISTOPHER RACICH, KROLL ASSOCIATES, WASHINGTON, D.C. There is also the question of what information is being accessed with the use of the subpoena? If the subpoena is used to gain access to information regarding a person’s posting on a message board, often the user information (from the message board provider) is not important because of the fact it is easily falsified. What is more important is the IP address and exact date/time of the person who is posting. This information can be used to locate the Internet service provider, and I don’t think there is a large expectation of privacy in this information due to the fact that every Web server has the ability to record it. Once you get this information, you may then have the ability to request of someone (an ISP) more private information, but that information is not always necessary to identify a poster.

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