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EFFector - Volume 18, Issue 34 - Delaware Supreme Court Protects Anonymous Blogger


EFFector - Volume 18, Issue 34 - Delaware Supreme Court Protects Anonymous Blogger

EFFector       Vol. 18, No. 34       Oct 6, 2005

A Publication of the Electronic Frontier Foundation     ISSN 1062-9424

In the 350th Issue of EFFector:

Delaware Supreme Court Protects Anonymous Blogger

Requires Plaintiffs to Meet Strict Standard Before Unmasking Critic

Wilmington, Delaware - 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 Wednesday.

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

"Bloggers have a strong First Amendment right to speak anonymously," said Kurt Opsahl, EFF staff attorney. "It is critical that plaintiffs' claims face a stringent test before a court unmasks online critics, lest we reduce the vibrant public debates on the Internet to the cautious views of a select few voices."

The defendant in the case posted under the alias Proud Citizen on the "Smyrna/Clayton Issues Blog" ( In two messages from September of 2004, Proud Citizen discussed a member of the Smyrna Town Council, Patrick Cahill, referring to Cahill's "character flaws," "mental deterioration," and "failed leadership," and stated that "Gahill [sic] is... paranoid."

Cahill and his wife filed a complaint for defamation, and sought to discover Proud Citizen's identity, which the trial court allowed under a very relaxed standard - merely requiring a claim made in good faith. The Delaware Supreme Court disagreed, noting that substantial harm may come from allowing a plaintiff to compel the disclosure of an anonymous defendant's identity with a weak or trivial claim.

Instead, the Court required a stricter standard: the plaintiff must (1) make reasonable efforts to notify the defendant; and (2) provide facts sufficient to defeat a summary judgment motion (i.e., submit enough evidence to show the Court that the case was strong enough to proceed to trial). The Court held that the plaintiffs had not shown that statements made by Proud Citizen met this test, in large part because they were likely to be seen by the Internet audience as statements of opinion.

EFF, along with Public Citizen, the American Civil Liberties Union, and the American Civil Liberties Union of Delaware, filed a "friend of the court" brief supporting the blogger's right to speak anonymously. You can learn more about EFF's efforts to defend bloggers' rights at

For this release:

EFF Defends Right to Access Public Web Pages Without Getting Sued

Brief Supports Past Court Opponent DirecTV

San Francisco - EFF filed a brief this week in support of one of its previous court opponents, DirecTV, arguing that a federal appeals court should throw out a lawsuit against the company for accessing a public website.

DirecTV is being sued by Michael Snow, the publisher of an anti-DirecTV website that contained warnings to DirecTV employees that they were not authorized to enter. In its "friend of the court" brief to the Eleventh Circuit Court of Appeals, EFF argues that the federal Stored Communications Act, on which Snow's suit relies, only protects websites that are configured to be private.

"If you want to keep your website private, then you should protect it with a password," said EFF Staff Attorney Kevin Bankston. "The law doesn't allow web publishers to sue when people they don't like visit their site. Otherwise, any company could publish terms of service forbidding competitors, consumer watchdogs, journalists, or even government officials from scrutinizing a public website." Under Snow's theory, not only could such unauthorized visitors be sued, they could also be prosecuted and sent to prison.

Snow is asking the appeals court to overturn the district court's dismissal of his case. EFF agrees with DirecTV that the case should have been dismissed, but argues that the lower court's reasoning for dismissal was flawed.

"The district court made the right decision but based on the wrong reasons, threatening the legal protections for private web communications," Bankston said. "The appeals court needs to clarify that although public websites aren't protected by federal privacy laws, sites that are actually configured to be private are fully covered."

EFF has opposed DirecTV in the past for its legal campaign against "smart cards," and co-sponsors a website,, designed to help those who have been sued by DirecTV. However, as Bankston said, "When it comes to protecting the rights of Internet users, EFF doesn't hold a grudge. We may oppose DirecTV in other cases, but here, it's plainly on the correct side."

The US Internet Industry Association, whose membership includes many web hosts that offer private web services, joined EFF on the brief.

For this release:

For the full text of the brief:

Europe's Coming Broadcast Flag: A Stealth Attack on Innovation and Consumer Rights

London - EFF has filed comments with the Department of Culture, Media, and Sport (DCMS) in the British House of Commons about plans for digital television broadcasting in Europe. In the comments, EFF expressed concern that switching off analog broadcasts could result in new digital television standards that unduly restrict the public and manufacturers.

The Digital Video Broadcasting Project (DVB) - a group that creates standards for digital television in Europe, Australia, and much of Asia - has proposed a complex system for restricting digital broadcast programming after reception, analogous to the disastrous broadcast flag proposal in the United States. This system, called "Content Protection Copy Management" (CPCM), has been under discussion since 2003.

The CPCM restrictions include an "authorized domain" governing the number of devices that can use content and a myriad of broadcast flags that will restrict usage, recording, and storage. They also specify compliance rules for all manufacturers. As with the US broadcast flag proposal, these compliance rules would result in a ban on the use of free and open source software in connection with digital TV reception and usage.

"The DVB broadcast flag is much more sweeping than the one they tried for in America," said Cory Doctorow, EFF's European Affairs Coordinator, who attends the standards-specifying meetings on behalf of manufacturers who use free and open source software in their products. "The North American Broadcasters' Association has threatened to turn this into a global regulatory mandate. If that comes to pass, you'll never know which TV shows your devices can record or whether a new device will be allowed onto your home network. Additionally, this will give a veto over technology to entertainment companies, who've already ruled out open source because it lets users modify their own equipment."

EFF believes that a European broadcast flag would also be used to gain political leverage to argue again for a broadcast flag in the United States.

For this release:

For EFF's full comments submitted to the British House of Commons:

For a one-page summary:

EFF's action alert on the US broadcast flag:

EFF Partners with Craigslist for Nonprofit Boot Camp - October 8

EFF is proud to partner with the Craigslist Foundation for its 2nd Annual Nonprofit Boot Camp, a conference aimed at fostering nonprofit leadership and collaboration. Join more than 1,300 emerging nonprofit leaders to get educated in all aspects of successfully starting and running a nonprofit, find inspiration, and get connected with peers and valuable resources.

Registration includes the conference and evening Networking Reception, as well as breakfast, lunch, and dinner. Learn more and register online at:

ACLU Freedom Files: "The Supreme Court" - October 13

Last month, we told you about "Beyond the Patriot Act" - the first in a series of 30-minute features from the ACLU and Robert Greenwald, the award-winning producer of "Outfoxed" and "Unconstitutional." The programs, which you can view on television or on the Web, are designed to spark action and reveal how civil liberties affect real people every day. They feature stirring accounts of current cases, as well as well-known actors, activists, and comedians.

"Beyond the Patriot Act" is now available for viewing online at the ACLU TV website: The second show, "The Supreme Court," airs on Link TV (satellite) on October 13, 2005 at 8 p.m. Visit the website to watch the trailer, organize a community showing, order DVDs for your classroom, and more:

EFF in Canada: Protect Your Northern Rights!

EFF is pleased to announce that we are strengthening our work in Canada. We'll be tracking issues like Bill C-60 (copyright reform), "lawful access" (privacy and surveillance), and other digital rights issues that matter to Canadians. Ren Bucholz, EFF's Policy Coordinator in the Americas, is now based in Toronto, Ontario, where he'll be following these developments full time. If you're interested in staying up-to-date on EFF's work in Canada, sign up for special bulletins here:


miniLinks features noteworthy news items from around the Internet.

Australian High Court Rules "Mod Chips" Legal
Meaning Australian mod chippers can circumvent Sony PlayStation access controls to allow people to play cheaper overseas versions of games - without violating anti-circumvention law:,5744,16840543%255E2702,00.html
Kim Weatherall provides extensive analysis:

Public Knowledge Unveils Policy Blog
Our beltway buddy blogs what's going down in the DC digital rights scene:

Lessig to Speak on Free Wi-Fi
On October 10th, EFF Board Member Lawrence Lessig will look into the implications of muni wi-fi in San Francisco:

Declaration of InDRMpendence
ZDNet's David Berlind has had enough of purposely crippled technology: EFF's guide to DRM in online music:

Throwing the Book Right Back At You
An RIAA P2P litigation campaign defendant in Oregon counter-sues with pretty much every law in the book:

Anything You Can Scan I Can Scan Better
Yahoo and Google engage in a virtuous battle to digitize libraries and the public domain:

Customize Google with Firefox Extension
An open source, anonymizing remixer for the Google site:

Who Owns Barbie?
A mainstream article providing an overview of the issues fans and artists confront when they make use of characters and images that corporations control:

Duke Podcasting Symposium
EFF's own Jason Schultz spars with the RIAA in the "Law and Policy Panel Discussion" at Duke's recent podcasting symposium:

I Like First Mondays
The academic webzine has compiled an anthology of pieces by open source thinkers:

China's Internet Ten Commandments
What you can and cannot do online in China, from Reporters Without Borders:

Europe and US Spar Over Who Gets Root
The root domain nameserver, that is:

Important Technologies Are Free Technologies
Don Marti signs off as editor of Linux Journal with a piece on two non-Net technologies that make the Internet work:

The Clash of the High-Tech Titans
Nice overview of the issues and figures involved in telecom regulation reform:

Home Recording Rights Coalition vs the Broadcast Flag
The Godfather of Fair Use Rights, the HRRC, issues an action alert to fight the digital radio broadcast flag:

Night of the Living Broadcast Flag
The title of Public Knowledge's latest alert says it all:


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