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For the second time, a New Jersey court has ordered an Internet service provider to disclose the identities of cyberspace John Does. Superior Court Judge Miriam Span last Thursday directed America Online to identify account holders who spammed the Elizabeth Board of Education three times last month from three e-mail addresses. They sent as many as 60 identical messages to nearly 2,000 teachers and board employees. “The Board of Education can’t be said not to have a right to be free of unsolicited bulk e-mail flooding its system,” Span ruled from the bench in Elizabeth Board of Education v. Holzapfel et al., UNN-C-175-00. Span, who is Union County, N.J.’s presiding Chancery judge, said she needed to know who the senders were so she could enjoin them from causing further e-glut. The e-mails urged support for a local referendum in Tuesday’s elections that would have replaced the elected school board with one appointed by the mayor. The measure was defeated, with only 5,194 “yes” votes to 10,209 “no.” Under Span’s order, the defendants were restricted through Election Day to no more than one message per day to any school board e-mail address. In January, Bergen County, N.J., Superior Court Judge Peter Boggia ordered Yahoo to disclose the names of people who posted defamatory messages on a Yahoo-hosted online bulletin board. Boggia subsequently held that the posters defamed a Ridgefield, N.J., biomedical company in Biomatrix Inc. et al. v. Costanzo et al., BER-L-670-00. Though both cases involve issues of online anonymity and freedom of speech, and resulted in an order to disclose, the cases differ in some vital aspects. The Elizabeth Board of Education case involves political speech. The e-mail address from which thousands of copies of the first message were sent to 542 school addresses on Oct. 15 was [email protected] In contrast, the Biomatrix suit involved criticism about a publicly traded company and its officers, which allegedly caused a drop in the price of the company’s stock. Further distinguishing the Elizabeth case is the sheer volume of the disputed speech — one of the three episodes involved 61,385 messages — and the fact that one of the messages came with a virus attached. Joseph Pellegrino, who runs the school district’s 6,000-computer system, testified before Span on Oct. 24 that, if effective, the virus, w97n.marker, would have taken effect on the first of the month, uploading the recipient’s e-mail address to an unknown Web site. That never happened, he testified, because the virus was deleted, and principals made announcements warning teachers not to open the infected e-mails. Another difference between the cases is that anonymity is less of a concern in the Elizabeth case. Alice Holzapfel, a former board member who chaired “Vote YES for Our Schools,” a group that advocated for the referendum, signed her name to the second message and does not deny that she sent it. Her certification last week states, “I sent some of the e-mails.” She does not specify which ones, but her name appears on the second one. Her certification also asserts that the inclusion of any virus was inadvertent. The third e-mail, which also urged a yes vote and whose 60,000-plus duplicates were dispatched on Oct. 23 from [email protected], says it was sent by Ed Zarnock, president of the Union County Central Labor Council. Board attorney Julio Sanchez, a sole practitioner in Elizabeth, N.J., argued before Span that, despite the ostensible attributions of authorship, AOL should be compelled to identify the account owners to confirm who sent the e-mails and because AOL users can maintain up to seven e-mail addresses. The Biomatrix case, on the other hand, involved unknown defendants using screen names and facing exposure to damages from the disclosure of their names. There, the court provided no notice to the defendant John Does, and none of them appeared to contest Biomatrix’s request for their identities. Span, on the other hand, attempted to satisfy due process by denying relief at the initial hearing on Oct. 24 so that AOL could send e-mail notice of the litigation and copies of the papers to the three account owners. As a result, Robert Levy, a partner with Scarinci & Hollenbeck in Secaucus, N.J., appeared at the second hearing for Holzapfel and VoteYeson4 to oppose the board’s application. Levy questioned the school board’s motive for seeking the relief, pointing out that the e-mails are “directly contrary and opposite to the interest of the school board in the upcoming election.” The argument appeared to resonate with Span, who queried Pellegrino on whether the board had previously sought injunctive relief against commercial e-mail or e-mail packing a virus. Pellegrino testified that the board had received such e-mail on other occasions, but had not gone to court to stop it. A POLICY HONORED IN THE BREACH Board attorney David Corrigan, a partner with Murray, Murray & Corrigan in Little Silver, N.J., argued for injunctive relief based on board policy forbidding use of e-mail for non-school business. He also pointed to the form signed by each computer user agreeing not to use the computer for “political lobbying.” The argument carried little weight with Span, who referred to the policy as “probably more honored in the breach” and noted Pellegrino’s admission that even he sent personal e-mails from work. Based on the open nature of the school computer system, she distinguished the case from Perry Education Association v. Perry Local Educator’s Association, 460 U.S. 37 (1983), which held that an internal mail system was protected, and State v. Schmid, 84 N.J. 535 (1980), which held that Princeton University could charge a political leafletter with trespassing on the campus. Although Span did not find that the board’s computer system qualifies for absolute protection, she held that the bulk e-mailing was “oppressive” and, as such, not protected, justifying imposition of time, place and manner restrictions. Levy and Corrigan were happy with the outcome, though Corrigan says he had to check with his client about whether it wanted to appeal the denial of broader injunctive relief. Sanchez says he was disappointed with Span’s failure to rule that the school computer system is not a public forum. He also says the board might amend the complaint to assert a claim for damages — the “littering” of the system and more than 50 hours it took to deal with the computer problem. No counsel appeared for Zarnock or “unionmessage,” but Corrigan’s associate, Thomas Toman, told Span that Zarnock has an attorney — Paul Montalbano, a partner with Kenilworth’s Schneider Goldberger Cohen Finn Solomon Leder & Montalbano — who had been notified of the hearing but declined to attend. Montalbano could not be reached for comment; his office said he was away. AOL general counsel Laura Heymann, who termed AOL’s interest in the dispute that of a mere “stakeholder,” participated by telephone in the hearing. She said AOL would comply with Span’s order. OTHER CASES IN THE PIPELINE At least two other cases seeking identification of cyberposters are pending in New Jersey, both in Morris County. In Dendrite v. Does Nos. 1 through 4, MRS-C-129-00, Dendrite International Inc. of Morristown filed an order to show cause in May why the court should not order disclosure from Yahoo. Superior Court Judge Kenneth MacKenzie solved the due process problem by posting notice on the online bulletin board, with the result that two of the four Does challenged the application. The motion was argued in July and a decision is pending. Immunomedics Inc. v. Doe, MRS-L-3085-00, filed on Oct. 12, is before Superior Court Judge Barbara Zucker-Zarett.

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