Copyright & New Media Law Volume 19, Issue 2 • summer 2015 Making complex legal issues make sense

The 21st Century Federalist Papers Anonymous Online Speech, John Doe Lawsuits, and the First Amendment By Margaret E. Krawiec, Partner, and Thomas Parnham, Associate

An author’s decision to remain anonymous, Among the cherished freedoms protected Today, the right to speak anonymously is like other decisions concerning omissions by the First Amendment is the right to most frequently exercised via the Internet, or additions to the content of a publication, speak anonymously. Indeed, anonymous including through email, message boards, is an aspect of the freedom of speech speech has played an important role and social media websites. As the U.S. protected by the First Amendment. throughout this nation’s history: colonial Supreme Court recognized nearly twenty patriots writing against the abuses of the years ago, at the dawn of the information McIntyre v. Ohio Elections Commission, English crown “frequently had to conceal age, anyone with an Internet connection 514 U.S. 334, 342 (1995) their authorship or distribution of literature,” “can become a pamphleteer” or a “town and even “the Federalist Papers, written in crier with a voice that resonates farther [The Internet] provides relatively unlimited, 4 favor of the adoption of our Constitution, than it could from any soapbox.” In 1997, low-cost capacity for communication of all 1 were published under fictitious names.” the year Reno was decided, the U.S. Census kinds. . . . This dynamic, multifaceted “The decision in favor of anonymity may be Bureau reported that approximately 18% of category of communication includes not motivated by fear of economic or official households had Internet access; as of 2011, only traditional print and news services, retaliation, by concern about social ostracism, that number had jumped to 72%. The vast but also audio, video, and still images, as or merely by a desire to preserve as much of majority of the U.S. population is now able well as interactive, real-time dialogue. . . . 2 one’s privacy as possible.” “Anonymity to easily and inexpensively express [O]ur cases provide no basis for qualifying [also] provides a way for a writer who may themselves, creating an army of anonymous the level of First Amendment scrutiny that be personally unpopular to ensure that pamphleteers and town criers. should be applied to this medium. readers will not prejudge her message simply 3 Reno v. American Civil Liberties Union, because they do not like its proponent.” 4 Reno v. American Civil Liberties Union, 521 U.S. 844, 851 (1997). 521 U.S. 844, 870 (1997)

1 Talley v. California, 362 U.S. 60, 65 (1960). 2 McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 341-42 (1995). 3 Id. at 342. www.copyrightandnewmedialaw.com Volume 19, Issue 2 • summer 2015 Copyright & New Media Law 1

meet some version of a judicially crafted First Amendment balancing test prior to enforcement of a subpoena seeking [A]lthough a modern-day Publius may disclosure of a John Doe defendant’s identity include, but are not limited to, Arizona, believe that his or her online speech California, Delaware, the District of is truly anonymous, the Internet also Columbia, Indiana, Kentucky, Maryland, Michigan, New Hampshire, New Jersey, creates unprecedented tools with Pennsylvania, and Texas. Similar requirements have been prescribed by which to unmask a speaker’s identity. statute or court rulings in jurisdictions that do not permit suits to be brought against unidentified “John Doe” defendants but that But although a modern-day Publius may speak anonymously increasingly has fallen do permit some form of pre-litigation believe that his or her online speech is truly to the judiciary. As discussed below, state discovery. Illinois, New York, Virginia, and anonymous, the Internet also creates courts have been particularly quick to react Wisconsin all require some form of unprecedented tools with which to unmask a to developments in this area, although evidentiary showing to obtain pre-litigation speaker’s identity. Internet service providers similar issues have been percolating in the discovery and have applied these rules to 7 such as Comcast and Verizon, email and federal courts as well. These courts have require plaintiffs to make such a showing search companies such as Google and Yahoo, recognized the need to balance an Internet before granting discovery petitions seeking and social media platforms such as Facebook speaker’s First Amendment right to engage the identity of anonymous Internet speakers. and Twitter all regularly track and monitor in anonymous speech against society’s users’ online activities. Users may be interest in preventing defamation and other The facts underlying these cases are as identified by IP addresses, cookies (i.e., data inappropriate – and unprotected – speech. diverse as are the types of Internet speech, stored in a user’s web browser), or information and a full accounting of the case law is an such as credit card numbers provided by the For the most part, courts have attempted to undertaking that far surpasses the space user during a sign-up process. Accordingly, balance the competing rights and interests allotted for this article. Nevertheless, it is no matter what steps an Internet speaker implicated by John Doe subpoenas by worthwhile to familiarize oneself with may take to remain anonymous, to identify requiring the plaintiff to make some showing some of the basic fact patterns these cases that speaker, a person need only file a lawsuit on the merits before ordering compliance generally take, which may be illustrated by against a “John Doe” defendant5 and issue a with a subpoena requesting the disclosure of a brief synopsis of a few of the seminal subpoena to the relevant Internet service the John Doe defendant’s identity. As a cases in this area: general matter, these courts require at a provider or other new media company 8 seeking that identity. minimum that (1) the plaintiff and/or the In Dendrite International, Inc. v. Doe No. 3, court attempt to notify the anonymous an anonymous individual using the Such “John Doe” lawsuits have become speaker of the request to discover his or her pseudonym “xxplrr” posted on a Yahoo increasingly common as the Internet identity and (2) the plaintiff produce bulletin board a series of comments critical becomes ever more ubiquitous. Of course, evidence supporting each element of the of changes in Dendrite’s revenue-recognition plaintiffs do sometimes have legitimate defamation claim (except for elements that accounting. Dendrite, a New Jersey company, claims against anonymous Internet speakers, are uniquely within the control of the John sued the anonymous commenter for who may use the cloak of anonymity in an Doe defendant, such as malice). Some courts defamation and misappropriation of trade attempt to defame with impunity. also mandate an equitable balancing of the secrets and sought discovery regarding the Frequently, however, plaintiffs will “bring John Doe defendant’s First Amendment commenter’s identity. suit merely to unmask the identities of rights against the strength of the plaintiff ’s 9 anonymous critics.”6 In other words, evidentiary showing. Other courts have In Doe No. 1 v. Cahill, an anonymous plaintiffs may use a John Doe subpoena not concluded that such an additional equitable individual using the alias “Proud Citizen” to pursue legitimate defamation claims, but balancing step is unnecessary or have posted comments on a local blog that were to intimidate and silence a legitimate imposed other requirements (e.g., a showing critical of Patrick Cahill, a city councilman. viewpoint – the very evils the First that the requested information is important Cahill sued the anonymous commenter for Amendment was adopted to protect against. or necessary to permitting the plaintiff to defamation and invasion of privacy. After proceed with his or her lawsuit). obtaining the anonymous commenter’s IP Due to the increased use and potential address from the blog’s owner, Cahill issued abuse of such John Doe subpoenas, the job Jurisdictions that have required plaintiff to a subpoena to Comcast, the Internet of sorting out claims involving the right to service provider associated with the IP 7 See, e.g., SaleHoo Grp., Ltd. v. ABC Co., 722 F. Supp. 2d 1210 5 A “John Doe” lawsuit or subpoena is one in which the plaintiff (W.D. Wash. 2010) (John Doe subpoena issued to GoDaddy seeking address, seeking the commenter’s identity. does not know the identity of the party or parties to be sued and the identity of operator of website); USA Techs., Inc. v. Doe, 713 F. therefore uses a fictitious name, often “John Doe,” to represent the Supp. 2d 901 (N.D. Cal. 2010) (John Doe subpoena issued to Yahoo! defendant. seeking the identity of anonymous speaker who commented on Internet 6 Doe No. 1 v. Cahill, 884 A.2d 451, 457 (Del. 2005). message board). 8 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). 9 884 A.2d 451 (Del. 2005).

2 Copyright & New Media Law Volume 19, Issue 2 • summer 2015 www.thecopyrightandnewmedialawnewsletter.com In Mobilisa, Inc. v. Doe No. 1,10 the founder In each of these cases, the court adopted Doe defamation actions, companies or and chief executive officer of Mobilisa used some form of First Amendment balancing individuals that anticipate taking legal his corporate email account to send an test to protect the identity of the anonymous action against anonymous Internet critics “intimate message” to a woman with whom speaker. For example, the Dendrite court would do well to familiarize themselves he was involved in a personal relationship. required (1) notice to the defendant, (2) with the standards applicable in their A few days later, members of Mobilisa’s identification of the exact statements jurisdiction. Even if there is no precedent management team received an email from alleged to be defamatory, (3) evidence directly on point, potential plaintiffs at a an anonymous individual that contained sufficient to survive a motion for summary minimum should be prepared to meet a the contents of the personal email with the judgment, and (4) a balancing of the summary judgment or similar standard. subject line, “Is this a company you want to defendant’s First Amendment right against Moreover, to the extent they have not work for?” Mobilisa subsequently filed suit the strength of the plaintiff ’s evidence. The already done so, Internet service providers against the anonymous email user, alleging Cahill court, on the other hand, required and other companies that maintain unauthorized access to Mobilisa’s secure only (1) notice to the defendant and (2) identifying information about their email system, and served a subpoena evidence sufficient to survive a motion for customers should consider adopting on the user’s email provider seeking the summary judgment. That court expressly notification policies that will allow First user’s identity. disavowed any need for a separate balancing Amendment objections to be raised by

11 requirement. The Mobilisa court generally anonymous Internet speakers. Finally, In Solers, Inc. v. Doe, an individual used a adopted the Dendrite approach but without where the anonymous defendant has website reporting form to file a complaint the requirement to specifically identify the received notice of the action, defense with the Software & Information Industry defamatory statement; the Solers court counsel should be prepared to hold the Association, a trade association for the generally adopted the Cahill approach, but plaintiffs to their burden. software and digital content industry, with the additional requirement that the accusing Solers, which develops software court determine that the information Margaret E. Krawiec, Partner Skadden, Arps, Slate, Meagher & Flom LLP for the Department of Defense, of sought is important to enable the plaintiff copyright infringement. After the trade [email protected] to proceed with his lawsuit. And courts in association refused to identify the other jurisdictions have adopted many individual to Solers, the company sued Thomas A. Parnham, Associate variations on the same themes. Skadden, Arps, Slate, Meagher & Flom LLP him as a John Doe defendant for [email protected] defamation and tortious interference and Given the wide variety of potential fact served a subpoena on the trade association patterns and legal tests applicable to John seeking all documents relating to the individual’s identity and the complaint he had filed.

10 170 P.3d 712 (Ariz. Ct. App. 2007). 11 977 A.2d 941 (D.C. 2009).

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