Doe subpoena
A Doe subpoena is a
Legal process
Unmasking an anonymous online poster is a two-step process. First, the plaintiff must issue a subpoena to the
If the website provides the poster's IP address, the plaintiff must then subpoena the
Courts do not require the target of a subpoena to provide
A defendant who does receive notice may file a motion to quash, which asks the court to block the subpoena and prevent the ISP from complying.[6] ISPs may also challenge Doe subpoenas on their customers' behalf, but they are not required to do so.[7]
Legal standards
No uniform standard exists in the United States for determining the circumstances under which an anonymous online speaker may be unmasked.[8] The federal and state courts that have considered the issue have applied a variety of tests.
Summary judgment standard
This standard requires an ISP to divulge the identity of an anonymous poster if the plaintiff's case would be able to withstand a motion for summary judgment. This means that the plaintiff must "make a sufficient showing on [every] essential element of its case with respect to which it has the burden of proof."[9]
The lead case applying the summary judgment standard is Doe v. Cahill,
Other courts have applied a "
The prima facie standard was also favored by a
Summary judgment standard followed by balancing
This test provides a higher level of protection to anonymous online speakers, in that it requires a court to first apply the summary judgment standard of Doe v. Cahill and then, if the plaintiff is able to meet its burden, to balance the strength of the plaintiff's prima facie case against the poster's interest in remaining anonymous.
A New Jersey appellate court applied this hybrid test in Dendrite International, Inc. v. Doe No. 3.[19] The court set forth five guidelines for judges to follow in deciding whether to compel disclosure of an anonymous poster's identity: (1) the plaintiff must make good faith efforts to notify the poster and give the poster a reasonable opportunity to respond; (2) the plaintiff must specifically identify the poster's allegedly actionable statements; (3) the complaint must set forth a prima facie cause of action; (4) the plaintiff must support each element of the claim with sufficient evidence; and (5) "the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed."[20]
The so-called
Motion to dismiss standard
Some early cases required plaintiffs to demonstrate that their cause of action could withstand a motion to dismiss. This standard holds plaintiffs to a much lower evidentiary burden than the summary judgment standard, as it only requires the allegation of facts that, if true, would entitle the plaintiff to a legal remedy.
A
Good faith standard
Under a good faith standard, plaintiffs are simply required to show that their claim is made in
Courts and commentators have subsequently deemed this standard the "most deferential to plaintiffs," as "it offers no practical, reliable way to determine the plaintiff's good faith and leaves the speaker with little protection."[30]
Statutory limitations to obtaining IP addresses
Federal privacy statutes may limit a plaintiff's ability to gain access to an ISP's subscriber records.
Cable TV Privacy Act of 1984
Under the
Electronic Communications Privacy Act
The Electronic Communications Privacy Act[33] restricts government and private access to computer records. Thus, in order to unmask the author of an anonymous post through the legal process, the individual seeking the information must comply with ECPA. There is no provision within ECPA, other than voluntary disclosure or with consent, that allows civil litigants to force an ISP or website to reveal the contents of a user's emails via a subpoena.[34] However, a private party in a lawsuit may force an ISP to disclose non-content records (e.g. the name of the owner of an account, a list of email addresses to whom emails were sent, access times, etc.) through a subpoena. In addition, the government can obtain the records needed to identify the person behind an IP address using a subpoena. In order to obtain more detailed transactional records, the government would be required to obtain a court order by setting forth "specific and articulable facts show that there are reasonable grounds to believe...the records...are relevant and material to an ongoing criminal investigation."[33]
See also
References
- ^ Aaron E. Kornblum, Searching For John Doe: Finding Spammers and Phishers (pdf) Archived April 12, 2007, at the Wayback Machine, Second Conference on Email and Anti-Spam (2005). Retrieved on 2009-03-15.
- ^ Bills proposed in both houses of Congress in February 2009 would require ISPs and wireless access points to retain records of IP addresses for two years. This proposal, if enacted, would not affect the retention policies of web hosting services, however. See Albanesius, Chloe (2009-02-20). "Bill Would Require ISPs to Retain Data for Two Years". PCMag. Retrieved 2009-03-16.
- ^ Id. at 346.
- ^ Id. at 328.
- ^ See Statutory Limitations to Obtaining IP Addresses.
- ^ See Citizen Media Law Project's Guide to Potential Legal Challenges to Anonymity. Retrieved on 2009-03-15.
- ^ Gleicher, supra note 1, at 345.
- ^ Who's Exposing John Doe Journal of Technology Law & Policy, Vol. 13, No. 1, 2008
- ^ Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Retrieved on 2009-03-15.
- ^ 884 A.2d 451 (pdf) (Del. 2005). Retrieved on 2009-03-15.
- ^ Id. at 454.
- ^ Id. at 466–67.
- ^ Id. at 468.
- ^ Krinsky v. Doe 6, 159 Cal. App. 4th 1154 (pdf) (2008). Retrieved on 2009-03-15.
- ^ Id. at 1172.
- ^ 326 F. Supp. 2d 556 (pdf) (S.D.N.Y. 2004). Retrieved on 2009-03-18.
- ^ Id. at 564.
- ^ Id. at 564-67.
- ^ 775 A.2d 756 (N.J. App. Div. 2001). Retrieved on 2009-03-15.
- ^ Id. at 760-61.
- ^ 170 P.3d 712 (pdf) Archived March 13, 2009, at the Wayback Machine (Ariz. 2007). Retrieved on 2009-03-15.
- ^ Court of Appeals of Maryland, Feb. 27, 2009, No. 63 (pdf). Retrieved on 2009-03-15.
- ^ Id. at 41 (internal citation omitted).
- ^ 185 F.R.D. 573 (N.D. Cal. 1999). Retrieved on 2009-03-15.
- ^ Id. at 579.
- ^ Id. at 580.
- ^ Id. at 580.
- ^ 2000 WL 1210372, *8 (Vir. Cir. Ct. Jan. 31, 2000). Retrieved on 2009-03-15.
- ^ "Doe v. 2TheMart. Com Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001)". Justia Law. Retrieved 2024-01-08.
- ^ Krinsky, 159 Cal. App. 4th at 1167; see also Ryan M. Martin, Freezing the Net: Rejecting a One-Size-Fits-All Standard for Unmasking Anonymous Internet Speakers in Defamation Lawsuits, 75 U. Cin. L. Rev. 1217, 1228 (2007) (referring to the good faith standard as "extremely deferential to plaintiffs' allegations").
- 47 U.S.C. § 551.
- ECPA, and not the Cable Act, applied to government access of internet subscriber records).
- ^ 18 U.S.C. § 2703(d).
- City of Detroit, 252 F.R.D. 346 (pdf) Archived February 22, 2012, at the Wayback Machine (E.D. Mich.2008) (finding that a subpoena can be used to force a party to consent to disclosure).