OfflineI was served with a subpoena in a federal court case by the defendant - a local governing authority - that is being sued for wrongful dismissal of an employee.
The defense has the posts that were published and which were critical of the city. The content posted is and was public and available. Second, the material published is not the subject of the suit, was not illegal or overtly defamatory.
The defense issued the subpoena seeking what identifying information remains in the forum records in an effort to establish that the plaintiffs - themselves at the time public officials - may have been conducting a clandestine campaign in an effort to win an internal political war.
The subjects of the subpoena were a couple of hit-and-run posters who provided information that is highly suggestive that they are the plaintiff's in the case.
However, I can't say with authority that is who they are because the information I collect on members only include a IP address and a throwaway email address presumably chosen to hide their identity.
The posts were published under the user names and were part of the discussion of the firing of a police chief and a mini-scandal involving purchases by the city from the mayor's husband's business. Again, they were public and not moderated by the site.
My privacy policy does not promise anonymity and suggests that we will comply with subpoenas although it does provides me as the site owner the option of resisting a subpoena I feel is improper or destructive of the community.
As these posts did not instigate the lawsuit and may not even be germane to litigation (It is only my assumption that they are utterances of the plaintiffs in the case.) I feel it is both wise and appropriate to comply with the federal court subpoena in this instance.
I've got another week to produce the documents requested by the defense subpoena and basically I'm asking if anyone has an argument that suggests I should act otherwise.
At this moment I don't recognize a compelling argument.
GP Hughes
Print Me!
You are correct that if your terms & conditions do not promise confidentiality, your exposure on a contract claim for complying with a subpoena is limited. Many sites in your position will notify the anonymous poster of the subpoena, if possible, so that the poster can intervene and move to quash the subpoena under whatever protections for anonymous speech are recognized in the relevant jurisdiction. For more information, see our Legal Guide here.
However, every site must make its own determinations as to how far to go to defend users' anonymity, from both a legal and a business perspective. Some of the relevant policy issues are discussed in this blog post on our site.