February 24, 2005 | By Donna Wentworth

Publius, RIP?

EFF's own Fred von Lohmann has a monthly column at Law.com, and fortunately we have the freedom to publish these columns in their entirety here at the EFF website. This month's column is "Publius, RIP?" -- a look at why it's critically important to our society that we preserve anonymous speech on the Internet.

Here, an excerpt; click on "More" to read the entire piece:

In the classic New Yorker cartoon, the caption reads: "On the Internet, no one knows you're a dog." Not so. Whether you're spouting off your views about the latest episode of Desperate Housewives on a fan website, complaining about your sinking stock portfolio on a Yahoo message board or, in the case of a Texas man recently, castigating your local politicians for misspending taxpayer dollars, your Internet Service Provider (ISP) knows you're not a dog. And it knows your name, address and telephone number.

....This technological fact is having a growing and profound impact on the constitutionally protected right to anonymous speech. In a spate of cases across the country, individuals upset by what others are saying online (and recently copyright owners claiming online infringements) have filed lawsuits in order to issue subpoenas demanding that ISPs give up the identities of online speakers.

Publius, RIP?
by Fred von Lohmann
Also published at Law.com.

In the classic New Yorker cartoon, the caption reads: "On the Internet, no one knows you?re a dog." Not so. Whether you?re spouting off your views about the latest episode of Desperate Housewives on a fan website, complaining about your sinking stock portfolio on a Yahoo message board or, in the case of a Texas man recently, castigating your local politicians for misspending taxpayer dollars, your Internet Service Provider (ISP) knows you?re not a dog. And it knows your name, address and telephone number.

Not only does your ISP know who you are, but the computers you visit on the Internet know who your ISP is. Unless you take preventative measures, any computer you visit online can trace you back to your ISP. This is because each computer on the Internet, including yours, depends on an Internet Protocol (IP) number to figure out where to send that webpage you just requested, or that email you just checked. When you log onto the Internet, your ISP assigns your computer an IP number for that session. And IP numbers can easily be traced back to the assigning ISP.

So, if your ISP knows who you are, and every computer you visit on the Internet knows who your ISP is, then it's just a hop, skip and subpoena to connect the dots. If you've said something nasty about a company whose stock price has just cost you your early retirement, or blown the whistle on some corporate illegalities, your IP address leaves a trail of breadcrumbs that leads to your ISP, and thence to your door. (Note that the real "bad guys" of the Internet?the spammers, worm and virus writers, and the like?have sophisticated methods to "spoof" or hide their IP numbers, so you'll not be catching them this way.)

This technological fact is having a growing and profound impact on the constitutionally protected right to anonymous speech. In a spate of cases across the country, individuals upset by what others are saying online (and recently copyright owners claiming online infringements) have filed lawsuits in order to issue subpoenas demanding that ISPs give up the identities of online speakers.

The hasty case against anonymity is easy to make. After all, if some jerk is using a phony name in order to defame me, or, in a case before the Maine Supreme Court, allegedly impersonating me online, shouldn't I be able to find out who he or she is?

Fortunately, our Founding Fathers knew the value of anonymous speech to a free society?they themselves published the Federalist Papers anonymously. As the Supreme Court recognized in its 1995 ruling in McIntyre v. Ohio Elections Commission:

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical, minority views...Anonymity is a shield from the tyranny of the majority. ...It thus exemplifies the purpose behind the Bill of Rights, and of the First Amendment in particular: to protect unpopular individuals from retaliation...at the hand of an intolerant society.

Internet speakers choose anonymity for a variety of reasons. They may be human rights workers or whistleblowers seeking to publicize important information about crimes or abuses but also fearing for their personal safety or jobs. They may work for a big company during the day but want to express an opinion of their own after hours. They may be discussing embarrassing subjects or seeking information about medical conditions. And they may wish to say things that might make other people angry and stir a desire for retaliation. Whatever the reason for wanting to speak anonymously, the impact of a rule that makes it too easy to remove the cloak of anonymity is to deprive the marketplace of ideas of valuable contributions.

And sometimes anonymity is critical for even garden variety speech. In one recent case, the lawsuit and subpoena were issued in response to someone opining on a online message board that the president of a corporation had "a Napoleon complex." In another, the lawsuit was based on a statement that the company's executives were getting rich while the stock price was in free fall. Each of these suits was dropped once it became clear that the anonymous speaker was going to court to protect his identity, suggesting that the real purpose of the litigation was to discover whether the statements were made by employees so that the company could retaliate against them. The lawsuit was mere pretext for extra-judicial punishment.

Though these two suits were dropped, there was a sad postscript: postings to both of the message boards involved dropped off dramatically once word of the lawsuit got out, and still haven't returned to their previous levels.

Courts across the country are beginning to develop some basic rules about when the anonymity of an online speaker should be protected and when it should be breached. Specifically, the emerging test, best articulated in a New Jersey appellate decision called Dendrite, holds that when a court is faced with a subpoena aimed at identifying an anonymous speaker, the court should (1) provide notice to the potential defendant and an opportunity to defend his anonymity via a motion to quash; (2) require the plaintiff to specify the statements that allegedly violate its rights; (3) review the complaint to ensure that it states a cause of action based on each statement and against each defendant; (4) require the plaintiff to produce evidence supporting each element of its claims, and (5) balance the equities, weighing the strength of plaintiff's evidence and the potential harm to the plaintiff if the subpoena is quashed against the harm to the defendant from losing his right to remain anonymous.

In other words, until someone has come forward with at least prima facie evidence that you've done something wrong, your identity is protected. The core concepts here are notice, due process and the notion that we are all innocent until proven guilty.

While there is much to recommend this legal rule, as a practical matter, anonymous speakers are often unable from protecting themselves in many instances. This is because in the ordinary course of civil subpoenas, there is no requirement that ISPs provide notice to their subscribers before turning over their names (to their credit, Yahoo, AOL, Earthlink and other ISPs routinely provide such notice despite the lack of any legal obligation to do so).

In many other cases, there just isn't sufficient time for those who are given notice to find counsel and present a motion to quash the subpoena in time. The subpoena and the speaker are often hundreds of miles apart, as the subpoenas are generally issued in the ISP?s jurisdiction, not the speaker's. This puts an anonymous speaker in the position of having to engage distant counsel, usually on less than 10 days notice, if they are to resist the subpoena. And since the subpoena itself does not include the allegations in the underlying complaint, many speakers are left unable to respond to the claims in time because they simply don't know what the claims are.

In the end, legislation may be necessary. An effort in California to pass a law requiring notice to the speaker with enough information and time to allow them to protect themselves died in the Senate Judiciary Committee last fall, but will likely be introduced again in 2005.

So remember, on the Internet, your ISP knows you're a dog, and your adversary is only a subpoena away from compromising your constitutionally protected right to bark anonymously.


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