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The California Legislature currently is considering a bill designed to protect the anonymity of Internet users in certain respects. Specifically, the bill, if it becomes law, would require ISPs to send any subpoenas they receive that seek customer identities to their customers before the ISPs respond to the subpoenas. This would allow the customers a chance to block the revelation of their identities. ANONYMITY ON THE NET People often like to communicate on the Internet without disclosing their true identities. Thus, they may use pseudonyms for their e-mail addresses or when posting comments on Internet bulletin boards, and the like. People at times like to be able to speak freely in cyberspace without having their comments attributed directly to them, and they protect their personal privacy in the process. Accordingly, a John Smith may go by a online moniker like “TopCat.” Indeed, as the saying goes: “On the Internet, nobody knows that you are a dog.” POTENTIAL LEGAL LIABILITY However, Internet communications can lead to legal liability. One person alone can wreak havoc on another person, or indeed, an entire company. Imagine what happens when an anonymous person using a pseudonym posts a number of messages on Internet bulletin boards claiming that a particular company has engaged in false accounting, inside trading, and that officers of the company are about to dump their shares of company stock — the share price of the company plummets and the company obviously has been grievously harmed. SUBPOENAS Not surprisingly, in this type of context, the harmed party wants to find out the true identity of the anonymous Internet user so that legal redress can be pursued. To do that, a subpoena would have to be served on an ISP so that the identity might be ascertained. But what happens next? If served with a valid subpoena, the ISP might not be under an obligation to notify its customer, the anonymous Internet user, that it is about to disclose the customer’s true identity to the subpoenaing party. Thus, the customer could find that his or her identity has been “outed” before he or she had a chance to prevent identity disclosure. PROPOSED CALIFORNIA LEGISLATION Accordingly, similar to a law passed in Virginia last year, a bill, AB 1143, known as the Internet Communications Protection Act, has been presented in the California Legislature to protect the anonymity of Internet users by requiring ISPs to send customers copies of subpoenas seeking their identities prior to the ISPs responding to the subpoenas. This would afford the users an opportunity to engage counsel and file motions to quash the subpoenas under appropriate circumstances. Just because customers would receive copies of subpoenas relating to their identities, this does not necessarily mean that each such customer would file a motion to quash, nor that any such motion to quash would be successful. Rather, the intent is to allow a customer the chance to protect his or her own identity. There has been some concern expressed by ISPs in terms of the burden this law would place upon them. In essence, an ISP, an unrelated third-party in terms of the potential legal liability at issue in a given case, would be given responsibility as an intermediary for providing legal notice of subpoenas to others. ISPs make the argument that responsibility for providing the notice should fall on the parties issuing the subpoenas. However, at the time the subpoenas are served on the ISPs, the issuing parties do not know the identities of the anonymous ISP customers. Plus, the bill would allow an ISP to receive fees from the issuing parties for reasonable costs associated with compliance. STRIKING THE RIGHT BALANCE Frankly, even without this bill, some ISPs already do provide notice to customers when a subpoena has been issued that seeks their identities. This bill would make that practice a requirement. It is true that the ISPs would shoulder a real burden in terms of compliance. The financial burden, to the extent not recovered from subpoenaing parties, likely would be passed back to all of the ISP’s customers in terms of the price of ISP service. This may be the price of privacy — or at least the opportunity to object to the piercing of anonymity. Eric Sinrod is a partner in the San Francisco office of Duane Morris ( www.duanemorris.com), where he focuses on litigation matters of various types, including information technology disputes. Mr. Sinrod’s Web site is www.sinrodlaw.com, and he can be reached at [email protected] . To receive a weekly e-mail link to Mr. Sinrod’s columns, please type Subscribe in the subject line of an e-mail to be sent to [email protected] .

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