The Electronic Frontier Foundation (EFF) asked a judge in Illinois to reject a Petition to identify an anonymous MySpace user who allegedly posted fake profiles of an Illinois official because the request would violate both the First Amendment and federal statute.

In May of 2008, Cicero Town President Larry Dominick asked a Cook County Circuit Court judge to order the disclosure of the identities of the author of two MySpace profiles that allegedly included defamatory comments and unnamed privacy violations. In its amicus brief, however, EFF argued that the petition violates the First Amendment right to remain anonymous until a litigant can demonstrate a viable legal claim.

Outcome: Following the filing of EFF's amicus brief, Dominick dismissed his Petition on June 13, 2008, effectively ending the matter.

EFF was assisted in the matter by Charles Mudd, Jr., and Sophie Dye of Mudd Law Offices in Chicago.

On June 13, 2007, the New Jersey Township of Manalapan filed a malpractice suit against its former attorney Stuart Moskovitz, alleging misconduct regarding the Township's purchase of polluted land in 2005. The decision to file suit was met by a lively debate in the regional press and among local bloggers. One blogger who was particularly critical of the Township, of this and other decisions, was Blogspot blogger "datruthsquad" (http://datruthsquad.blogspot.com). Inexplicably, attorneys for the Township issued a subpoena to Google (owner of Blogspot) demanding that the identity of this anonymous critic be turned over, along with datruthsquad's contact information, blog drafts, e-mails, and "any and all information related to the blog." Despite repeated requests from EFF (now representing datruthsquad) to explain how this could be anything other than an attempt to out a vocal critic, attorneys for the Township refused to withdraw the subpoena and informed EFF that it could go to court to object to the subpoena if it so chose. On November 28, 2007, EFF filed a motion to quash the subpoena and for a protective order to prevent the Township from issuing similar subpoenas in the future.

On December 21, 2007, Superior Court Judge Terence Flynn granted EFF's motion to quash the Township's September 26th subpoena seeking the identity of datruthsquad and denied a motion by the township to authorize future subpoenas, finding that the subpoena amounted to "an unjust infringement on the blogger's First Amendment rights" and that the blogger "has a right not to be drawn into the litigation." Judge Flynn denied the motion for a protective order, finding that it was unnecessary at this time.

More from Judge Flynn's ruling from the bench:

"And I [...] recognize that there are First Amendment issues with regard to disputes with the past administration. And that anyone [...] has a right to make their feelings clear. And they have a right not to be intimidated by the issuance of discovery requests in order to shut them down. For that reason, in many ways, the authority cited by the intervenor is correct and accurate. And first of all the [...] blogger, if in fact it’s an individual person, and I’m assuming absent any evidence that it is another individual person, has a right not to be drawn into the litigation and forced to reveal identity or to impede on his or her First Amendment rights simply on a suspicion, however founded or unfounded, and I don’t believe that this suspicion is sufficiently founded at this point to determine that it is Mr. Moskovitz. That person should not be drawn into the litigation and forced to abide by the rules with regard to exchange of information that the parties have, as opposed to a third party. So the Court is satisfied that there is no authority under law for this particular subpoena to obtain this private information. To allow the subpoena would be undue and unjust infringement on the blogger’s First Amendment rights. There’s no factual basis at this point, other than a mere suspicion for the justification. And ultimately that even if the information were obtained, it would be so remote to the actual elements of this litigation that it would not be admissible under any circumstances."

John Doe is an anonymous poster on an internet message board who made some statements critical of Plaintiff First Cash, a Texas-based chain of pawn shops and check cashing services. First Cash sued doe in Texas, claiming breach of contract, on the claim that Doe "may have been" an employee who signed a confidentiality agreement. First Cash then sought a California subpoena in Santa Clara County to require Yahoo to reveal Doe's identity. Doe filed a Special Motion to Strike the subpoena, claiming that the lawsuit was a SLAPP (litigation aimed at silencing critics). Doe also sought the court's approval to file a declaration in support of his claim with his signature hidden, to preserve his anonymity.

At issue: Whether California's Anti-SLAPP statute can be used to stop California subpoenas seeking the identity of anonymous Internet speakers without just cause.

EFF Role: Representing the Doe along with the California Anti-SLAPP project.

Outcome: The Court rejected both the SLAPP motion and the motion to file Doe's declaration under seal. This case demonstrates the need to develop either caselaw or legislation to allow anti-SLAPP motions to protect John Does when the subpoena seeking their identity is issued in California even when the underlying case is in another state.

John Doe is an anonymous poster to two Internet message boards who made two statements critical of a publicly-traded company run by Plaintiff Cullens. In an effort to prevent Doe from further posting his opinions about the company on the Internet, Cullens filed a libel suit against Doe in Illinois and asked a California court to force disclosure of Doe's identity. Doe has sought to quash and strike the subpoena, asking the court to grant Doe protection under California's Anti-SLAPP statute. This would force Cullens to establish a probability of success on each of his claims, and if he cannot, would award attorneys fees and costs to Doe.

At issue: Whether California court processes allow the mere allegation of defamation to trump First Amendment right to anonymous online speech. Whether the Illinois case can proceed at all.

EFF Role: Representing Doe in defense of California subpoena along David Greene of the First Amendment Project and Charles Lee Mudd Jr., counsel for Illinois portion of action.

Outcome: Case dismissed and anonymity protected. In response to the motion to quash and motion to strike in California, Van Cullens withdrew his subpoena in California in April, 2003. Cullens persisted in Illinois, but ultimately, the Complaint against Doe was dismissed by the Illinois court in October 2003.

Case history:
The Recording Industry Association of America (RIAA), using a controversial subpoena provision introduced by the 1998 Digital Millennium Copyright Act (DMCA), demanded that Verizon Internet Services reveal the identity of a Verizon subscriber who allegedly used KaZaA peer-to-peer software to share music online. Verizon refused to divulge the subscriber's identity, claiming that the provision didn't cover alleged copyright-infringing material that resides on individuals' own computers, only material that resides on an ISP's own computer.

Overruling the D.C. District Court, the D.C. Circuit Court of Appeals agreed with Verizon. In January 2003 Judge Bates had rejected Verizon's interpretation of the DMCA subpoena provision, ordering disclosure of the subscriber's identity. The decision was appealed, and in the intervening time Verizon sought to quash a second subpoena. In December 2003, the D.C. Circuit found the subpoenas were not authorized by the DMCA. The Appeals Court granted Verizon's order to quash the second subpoena and vacated the order enforcing the first.

Significant issues raised:
Consumer Privacy; Anonymous Speech; Due Process

Outcome: Copyright holders cannot use pre-litigation DMCA subpoenas to get identifying information for peer-to-peer filesharers and must instead file John Doe lawsuits and seek the information using ordinary discovery processes.

Software development company seeks identity of John Doe who obtained email initially sent by company's CEO to his mistress and forwarded the email to company employees.

A case brought in a US district court by a Utah man threatens to undermine the First Amendment right to speak anonymously on issues of public concern. In Merkey v. Yahoo SCOX et al., the plaintiff requested an expedited process for serving subpoenas that would unmask anonymous "John Doe" critics who participated in a discussion of another court case, in which Utah-based technology company The SCO Group, Inc., is suing IBM.

The Delaware Supreme Court has protected the identity of a blogger in the case of Doe v. Cahill, finding that the plaintiffs failed to meet the strict standards required by the First Amendment to unmask an anonymous critic. It dismissed the case on October 5, 2005. EFF joined in an amicus brief with ACLU and Public Citizen.

This is the first state supreme court to rule on a "John Doe" subpoena or to address bloggers' rights.

On June 29, 2006, EFF filed to block an Oklahoma school superintendent's attempt to unmask the identities of a local website's operator and all registered users. On July 17, 2006, three days before a court hearing on EFF's motion to quash, Plaintiff dismissed his case.

The superintendent has sued Internet users who criticized him on the website's message board. In its motion to quash, EFF argues that the plaintiff's overbroad subpoena seeking to identify the site's operator and users violates First Amendment protections for anonymous speech and association.

"Anonymity is critical to public discourse and fundamental to a free society, allowing speakers to offer diverse views without fear of undue reprisal," said EFF Staff Attorney Corynne McSherry. "There is now clear judicial consensus that subpoenas to identify anonymous speakers must be carefully scrutinized."

In recent months, EFF lawyers have represented or provided amicus support in anonymity cases in California, Colorado, and Delaware. In the latter case, Doe v. Cahill, EFF helped successfully defend a Delaware blogger who had criticized a member of the town council. The case resulted in the first state supreme court decision confirming the First Amendment right to remain anonymous until a litigant can demonstrate a legitimate claim.

"Litigants must not be permitted to abuse the judicial process to identity anonymous individuals who have simply created a forum for critical comments or made statements a plaintiff dislikes," said EFF Staff Attorney Matt Zimmerman. "Speech critical of public officials—made anonymously or not—enjoys an extremely high level of legal protection."

Outcome: Case dismissed and anonymity of speaker protected.