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Anonymous users: Your ISP may ID you on demand -- and not even tell you
U.S. courts have long recognized that First Amendment free speech rights extend to anonymous speech, as Margaret E. Krawiec and Thomas A. Parnham of Skadden, Arps, Slate, Meagher, and Flom (a real law firm -- I kid you not) explain in a February 9, 2015, post on JD Supra Business Advisor. Unfortunately, it's trivially easy for Internet services to identify people who attempt to post content anonymously via their services.
Someone who is criticized online need only file a defamation suit against a "John Doe" defendant and issue a subpoena to have Comcast, Verizon, Google, Facebook, Yahoo, or another service disclose the critic's identity -- often without notifying the person whose identity is being disclosed. Many of these "John Doe" subpoenas are intended only to reveal the anonymous speaker's identity, according to some free-speech advocates, not to pursue any legally valid claims against the person.
State courts are beginning to apply a balancing test before issuing "John Doe" subpoenas: the plaintiff must first demonstrate some merit to the suit's claims. For example, the New Jersey Superior Court ruled that before compelling the disclosure of the identity of an anonymous speaker, the plaintiff must first attempt to notify the person of their request, identify specifically the alleged actionable speech, and provide evidence of each element of the defamation claim. Once these three conditions are met, the court balances the defendant's First Amendment rights against the strength of the plaintiff's evidentiary showing.
Internet services need to develop notification policies for instances when someone attempts to learn the identity of one of their anonymous users. Once notified, the anonymous speaker must ensure that the plaintiff is held to their burden of demonstrating the reasonableness of their claims.
Someone who is criticized online need only file a defamation suit against a "John Doe" defendant and issue a subpoena to have Comcast, Verizon, Google, Facebook, Yahoo, or another service disclose the critic's identity -- often without notifying the person whose identity is being disclosed. Many of these "John Doe" subpoenas are intended only to reveal the anonymous speaker's identity, according to some free-speech advocates, not to pursue any legally valid claims against the person.
State courts are beginning to apply a balancing test before issuing "John Doe" subpoenas: the plaintiff must first demonstrate some merit to the suit's claims. For example, the New Jersey Superior Court ruled that before compelling the disclosure of the identity of an anonymous speaker, the plaintiff must first attempt to notify the person of their request, identify specifically the alleged actionable speech, and provide evidence of each element of the defamation claim. Once these three conditions are met, the court balances the defendant's First Amendment rights against the strength of the plaintiff's evidentiary showing.
Internet services need to develop notification policies for instances when someone attempts to learn the identity of one of their anonymous users. Once notified, the anonymous speaker must ensure that the plaintiff is held to their burden of demonstrating the reasonableness of their claims.
