Jay DeVoy is an attorney focusing on First Amendment issues and regular contributor to the award-winning law blog The Legal Satyricon.
A little over a year ago, The Spearhead was created by writers and a community of readers who primarily participated anonymously or pseudononymously, using online monikers instead of their real names. While this is the formula for many successful message boards and blogs, it was especially important in creating a community dedicated to challenging the orthodoxy of modern society’s contrived gender equalism — a regime where men and women aren’t merely equal under the law, but identical despite obvious biological and physiological differences.
Especially for a venture in its infancy, the career risks of having one’s name associated with a site that could be branded as extremist or sexist – even absent any evidence – were great enough to dissuade participation under one’s real name. Historically, challenging the status quo has always been a risky proposition: The Federalist Papers, foundational documents for the American republic, were written anonymously in an environment where the penalty for dissension was death. While this anonymity is invaluable to those who wish to speak freely, today it can be stripped away for the cost of a lawsuit and a two subpoenas.
Nobody would suggest that online anonymity should be unlimited. It is unthinkable to suggest that anonymous sources of defamation (false, damaging statements) and child pornography – two kinds of speech not protected by the United States Constitution’s First Amendment – should not be unmasked and held accountable for their speech.
Often, though, litigation is initiated with the goal of unmasking anonymous speakers simply to harass and humiliate them with the strong arms of courts nationwide. These cases are often referred to as strategic litigation against public participation (SLAPP) suits, and only California currently has a statute penalizing plaintiffs who vex hapless defendants with them. (Federal anti-SLAPP legislation, the Citizen Participation Act of 2009, has been proposed; other states’ anti-SLAPP laws fall short on individual protections and apply only to political speech and matters of “public concern.”)
A sample of these anonymity-ending suits, often called “John Doe” lawsuits, can be found here. Commonly – though not always – men are the dissenting, anonymous defendants in these cases. Several of these suits arise from discussions on finance message boards, a convergence point for two historically male interests, and have resulted in expensive litigation, even where their anonymity was preserved.
In one prominent example, John Mackey, the CEO of Whole Foods, had his true identity outed through litigation concerning his message board activity. Using the moniker “Rahodeb,” Mackey talked down Whole Foods’ competitor Wild Oats Markets, contributing in part to Wild Oats’ stock price slide and Whole Foods’ eventual acquisition of the company.
Another interesting case is the defamation suit that two Yale Law students anonymously brought against one of AutoAdmit.com’s administrators and several dozen posters on the site. Although the case against the original name defendant, a site administrator with immunity for others’ postings under § 230 of the Communications Decency Act, was eventually dropped – and he later brought his own lawsuit against the girls, which also concluded before trial – defendants had to fight subpoenas that would reveal their identity for making statements that, in context, likely were not defamatory. The goal of that suit wasn’t to get to the heart of the alleged defamation though, but for the aggrieved girls – assisted by professors at Yale and Stanford, and an elite litigation boutique – to ferret out the identities of those who had hurt their feelings and humiliate them, ending their careers. In this case as in others, pursuing litigation drew more attention to a problem that would go away if ignored, a phenomenon fittingly named after Barbara Streisand as the Streisand Effect.
From these cases and others like it, we see that the lynchpin of internet anonymity is whether subpoenas are sent to a website and user’s internet service provider (ISP) fast enough to divulge records that lead to a defendant’s identity. In these cases, plaintiffs file suit and, once entitled to do so, send a subpoena to the website in question for information about the anonymous defendant in their crosshairs. Normally, the information from the site includes an IP address. Plaintiffs will then send a subpoena to the ISP responsible for that IP address, and the ISP will turn over the name, address and other account information corresponding with that address. Suddenly, anonymity is lost.
But, it’s not always that easy. A patchwork of state courts across the country have recognized the risks in allowing plaintiffs to subpoena records concerning a defendant’s internet identity due to the First Amendment issues at play. Over the last decade, two leading tests for analyzing these subpoenas have emerged.
First is the Cahill v. Doe standard promulgated by the Delaware Supreme Court. Under this test, a plaintiff must present evidence that could defeat a defendant’s motion for summary judgment in order for the court to issue a subpoena to an ISP that would in effect unmask an anonymous defendant. To further explain this standard, a defendant brings a motion for summary judgment to dispose of the plaintiff’s claims against him, and it is granted if there is “no issue as to any material fact.” If there is an issue as to a material fact – and the question of materiality is often at the center of such motions – then a court must deny the motion for summary judgment. Therefore, the Cahill standard requires a plaintiff to show there is a material question of fact regarding his claims against the defendant, something as simple as a he said/she said dispute, to unmask him or her and continue on with the lawsuit.
New Jersey’s Appellate Court, however, has set forth a more exacting standard that has been well-received around the country. In Dendrite International v. Does, the court adopted a five-factor test for analyzing subpoenas that would unmask anonymous defendants:
1) The plaintiff must make efforts to notify the anonymous poster and allow a reasonable time for him or her to respond;
2) Plaintiff must identify the exact defamatory statements made by the poster;
3) The complaint must set forth a prima facie cause of action;
4) The plaintiff must bring forth sufficient evidence for each element of its claim; and
5) the presiding court must balance the defendant’s First Amendment right of anonymous free speech against the strength of the plaintiff’s prima facie case and the necessity for the disclosure of the defendant’s identity.
Though still imperfect, it furthers the interests of free speech by expressly considering First Amendment concerns. Even where a court grants the plaintiff’s subpoena after such review, there was at least a more rigorous review in place before removing anonymity, and can alert a now-known defendant to prepare a defense more seriously.
The problem with both of these defenses is that a defendant must know enough to raise them. Where an anonymous defendant does not know he is being sued, he cannot respond to the subpoena and fight for his anonymity. Similarly, he – or his attorney, if one can be afforded – must know to, and how to, fight the subpoena and apply the right standard. Simply saying “this is unfair” will do no good. If an anonymous defendant or his attorney misses the chance to make the argument, or makes it poorly, his anonymity is history.
What’s a man to do?
Knowing is, as G.I. Joe said, half the battle. Being armed with this knowledge can lead to more responsible participation in online forums and other communities. Also, read the obnoxious mail your ISP sends you. Buried between the offers for more cable television channels and additional phone service might be your only notice that the ISP has received a subpoena for your personal information in a lawsuit you did not even know had been filed against you.
The best tactic is to post comments and content using your real name. Though not feasible for all situations, having one’s words tracked back to them leads to a certain restraint that is not as likely when the speaker will not be held personally accountable for his statements. This is an aspirational goal for everyone who works for someone else, but it helps keep discourse responsible while still making important observations and arguments. For the most part, people writing under their real name can get away with saying whatever they want — provided they do it civilly.
Another route to avoid potential liability is evasion. Browser plug-ins and standalone programs can be used to mask one’s IP address behind one or more layers of IP addresses from around the globe. One such example is Ghostsurf. A free IP proxy program supported by the Electronic Frontier Foundation is Tor, which runs your access to any site through several layers of servers that generally do not maintain use records, so any subpoena sent to Dusseldorf or Nice will be futile. For a quick-and-dirty web-based solution, sites can be visited through Hide My Ass, and throwaway e-mail addresses can be created with Mailinator. This is hardly an exhaustive review of the privacy solutions available to individuals, and the options available are as limitless as the internet itself.
The final option is activism. Make sure other people know about this issue and how they can be affected. Create a stink about online anonymity with your legislative candidates this election cycle. Problems like this can often be addressed with a statute, but the issue flies under the radar and is often left to the courts. For example, in many states, the reach of the courts’ jurisdiction over others is defined in a long-arm statute, even if it just says that the courts have all of the jurisdiction they are allowed to exercise under the United States Constitution. Simply having this standard and others like it spelled out, rather than leaving them for the courts to determine, exorcises uncertainty from the marketplace of ideas.
Express adoption of the Dendrite standard by state legislatures would be a boon to courts and individuals, and would especially protect those who go against the grain of political correctness. And why stop there? The legislature could mandate that subpoenas to ISPs must be ruled on by the judge before being issued, with appropriate briefing by the plaintiff, and a failure to do so would lead to sanctions in the form of fines, dismissal of the case, and even contempt. So long as this matter is left in the hands of the courts, decisive action will be almost impossible.
