Today, EFF took action in our latest representation aimed at protecting the anonymity of an online speaker. And in this case, for a slight change of pace, the at-fault litigant is a governmental entity.
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.
Today, EFF filed a motion to quash the subpoena and for a protective order to prevent the Township from issuing similar subpoenas in the future. Oral argument is currently scheduled for December 21st.
This case offers a number of twists that set it apart from an "ordinary" Doe case, but one in particular is worth noting: even if the Township had some legitimate need for the identity of its vocal critic (which it does not), it is absolutely barred from using an ordinary discovery subpoena to obtain such identity-related information. The federal Stored Communications Act (18 USC §§ 2701-11) forces governmental entities to use other more restrictive procedures when they seek to uncover information stored with online providers, procedures that are subject to more intense court scrutiny. No matter how compelling the Township's justification, the law says that discovery subpoenas simply can't be used by the government for such purposes.
Will that inconvenient fact make any difference to the Township? Stay tuned.
For more information, see our Manalapan v. Moskovitz case page.