Anonymity

Judge Says Former Congressman Can Get Names of Anonymous Posters from LoHud.com

Sam Bayard — Mon, 30 Jun 2008 13:14:05 -0400

LoHud.com, an online news site operated by The Journal News that focuses on New York's Lower Hudson Valley, reported on Friday that a Westchester County judge has ruled that it must turn over the names of three pseudonymous posters to former House Representative Richard Ottinger and his wife, June Ottinger. According to the report, Ottinger and his wife subpoenaed The Journal News asking for identifying information for posters to the site's Westchester and Mamaroneck community forums going by the psuedonyms "SAVE10543," "hadenough," and "aoxomoxoa." The posters allegedly made statements accusing the Ottingers of unsavory conduct in the course of a neighborhood dispute over their construction of a house in the Orienta, NY waterfront community.

The Journal News moved to quash the subpoena, but the court ruled that the newspaper had to turn over the requested information. Although the details are still sketchy, the court appears to have applied the standard for protecting the First Amendment right to anonymous speech set forth in Dendrite v. Doe, 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001). We are trying to get the underlying court documents, and we'll update this post and our database entry, Ottinger v. The Journal News, when we have more information.

Incidentally, this is the second subpoena issued to the Journal News over comments on LoHud this year. The Rockland County District Attorney's Office served a grand jury subpoena on the newspaper in April, demanding that it produce subscriber information for another pseudonymous user. The Journal News also moved to quash the subpoena in that case, but the court declined to adopt the Dendrite standard in the grand jury context and found that the District Attorney had made a heightened showing of need through in camera testimony. See our database entry, New York v. The Journal News, for details and copies of court documents.

EFF Asks Court to Protect Anonymity of Fake-Profile Creator

Sam Bayard — Thu, 05 Jun 2008 15:25:29 -0400

Larry Dominick, the Town President of Cicero, Illinois, is seeking information from MySpace about an anonymous user who set up fake profiles for him on the social networking site. He filed a petition in Illinois state court, seeking permission to issue interrogatories and document requests to MySpace about the user's identity. Dominick, who filed the petition in his capacity as Town President, contends that he has potential legal claims for defamation and invasion of privacy, but his petition does not identify any specific defamatory statements or describe the content of the profiles in detail. MySpace has taken down the offending pages, but has otherwise stayed out of the fray. Luckily, EFF has stepped in as amicus curiae and filed an excellent brief arguing that Dominick has not met the heightened requirements demanded of plaintiffs seeking the identity of anonymous Internet speakers.

To be clear, I'm not saying that I'm in favor of creating fake online profiles or that doing so is entitled to special First Amendment protection. For the most part, creating fake profiles is silly, and it is also potentially highly destructive. (Law.com published a good article this week, discussing some of the recent cases in what is sure to become an increasingly commonplace phenomenon.) On the other hand, I can imagine such profiles being a fertile platform for engaging in parody or legitimate criticism, especially of public figures like Dominick (a point not lost on EFF in its brief).

The point is that plaintiffs, especially public officials like Dominick, cannot just waltz into court and ask for an Internet speaker's identity. If we learned anything this past year, it is that the First Amendment places robust limitations on this kind of endeavor. From Mobilisa to Essent to Krinsky and others, the courts have agreed that plaintiffs seeking the identity of anonymous speakers first must establish that they have strong legal and evidentiary bases for their claims. As EFF points out in its motion to appear as amicus curiae, courts impose these strict procedural safeguards "as a means of ensuring that plaintiffs do not use discovery procedures to ascertain the identities of unknown defendants in order to harass, intimidate or silence critics in the public forum opportunities presented by the Internet." Dendrite Int'l v. Doe, 775 A.2d 756, 771 (N.J. App. Div. 2001).

In this case, Dominick has come nowhere near meeting the heightened standard of pleading and proof required. He doesn't even identity a single defamatory statement, much less bring forward evidence that any statement was false or caused him cognizable harm. Nor does he identify what type of "invasion of privacy" claim he believes he has. These vague allegations of wrongdoing on the part of an anonymous speaker are plainly insufficient to overcome the First Amendment interests at stake. Moreover, Dominick's decision to file the petition in his official capacity just makes matters worse. I can't think of any imaginable theory under which the town could recover -- as far as I can tell, a municipality can't sue for defamation or invasion of privacy. (Plus, it gave EFF the convenient argument that the Stored Communications Act prohibits the town from using civil discovery procedures to obtain customer information from MySpace.)

We'll be waiting with anticipation for the court's decision. Please see our database entry, Dominick v. MySpace, for updates and links to court documents.

Eclipse Aviation Uses Subpoena to Uncover Identities of Anonymous Critics

David Ardia — Fri, 25 Apr 2008 14:37:59 -0400

Eclipse Aviation, a manufacturer of "affordable" jets, recently sent a subpoena to Google seeking to uncover the identities of 28 users who posted on Eclipse Aviation Critic NG, a blog that Google hosts on its Blogger service.

The subpoena, which includes a colorful list of pseudonyms such as "Turn-and-Burn," "Bill E. Goat," and "Niner Zulu," does not state why the information is necessary. AINonline, an aviation news site, gives us a bit more insight:

According to Eclipse president and CEO Vern Raburn, the Albuquerque, N.M. aircraft manufacturer has been irreparably damaged by the “lies” posted by anonymous visitors on the blog, and he seeks to unmask them via the subpoena. But the blog hasn’t been far off the mark on several occasions, suggesting that some of the anonymous posters might be Eclipse employees who could be breaking a non-disclosure agreement signed when they were hired.

Wisely, the website operator Shane Price plans to fight the subpoena. Because the First Amendment creates a qualified right to speak anonymously, courts require a party seeking to unmask an anonymous critic to make a preliminary showing of the merits of the underlying legal claim. While it's not precisely clear how high this standard is in California -- for example, Columbia Insurance v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999) established a "motion to dismiss" standard that puts a relatively low burden on a party seeking to unmask an anonymous speaker, yet a more recent case, Krinsky v. Doe 6, H030767 (Cal. Ct. App. Feb. 6, 2008), applied a high-burden test that requires a party to make a "prima facie" showing on its underlying legal claim -- it is clear that Eclipse will be required to provide some explanation as to why it is entitled to the information it seeks. (For more information on the standards California courts apply, see our legal guide section on Legal Protections for Anonymous Speech in California.)

It remains to be seen whether Eclipse can meet this threshold showing that it is entitled to uncover the identities of these anonymous posters, but it will be interesting to watch this play out in the California courts. According to news reports and comments on Eclipse Aviation Critic NG, the posters plan to file a motion to quash in Santa Clara Superior Court where the subpoena was filed. You can follow further developments in the case in our Legal Threats Database entry: Eclipse Aviation Corporation v. John Doe.

(Kudos to Robert Ambrogi, who first brought this to our attention via a post on Law.com.)

Kentucky Legislator Introduces Bill to Stop Anonymous Posting

Sam Bayard — Tue, 11 Mar 2008 10:54:59 -0400

Last week, Republican Tim Couch of Kentucky introduced a bill in the state legislature that would impose criminal fines on Kentucky-based website operators who fail to collect "a legal name, address, and electronic mail address" before allowing a user to post a comment. The proposed law would also require website operators to "establish reasonable procedures to enable any person to request and obtain disclosure of the legal name, address, and valid electronic email address of [a user] who posts false or defamatory information about the person."

Hmm . . . This looks like a transparent attempt to get around the First Amendment protection for anonymous online speech recognized in a slew of recent and not-so-recent cases, including Doe v. Cahill, Mobilisa v. Doe, Krinsky v. Doe 6, Essent v. Doe, and Greenbaum v. Google. Entirely appropriately, Marc Randazza takes Couch out to the woodshed for failing to appreciate not only the state of the law but also the importance of anonymous speech to our nation's history.

Putting aside the First Amendment issue, Couch's bill suffers from a host of practical difficulties. Ryan Paul at Ars Technica, also fired up by the stupidity of the proposal, writes:

Web site operators have no means with which to validate the identification information they receive from users or guarantee its accuracy. If it were even legally permissible, a state-wide ban on anonymous posting would have little impact because it would not be enforceable against web sites outside of the state of Kentucky. Indeed, such a law would likely compel site operators to move their web sites out of Kentucky.

Oddly, even Couch appears half-hearted about the bill's prospects. The Lexington Herald-Leader interviewed Couch and reported that he "readily acknowledged on Wednesday that his bill raises First Amendment issues regarding free speech, so he won't be pushing it." Huh? Wait, it gets better:

"I think right now (online posting) is pretty much just on its own. It's a machine that's going to go its own way," Couch said. "The state can try to pass some rules, but I don't really think it would do anything."

I think it's fair to say that Kentucky website operators don't need to pack their bags just yet -- with an endorsement like that, this bill isn't going anywhere.

Anthony Ciolli, former AutoAdmit Defendant, Sues Everyone

Sam Bayard — Wed, 05 Mar 2008 16:46:56 -0500

Breaking news from Above the Law: Anthony Ciolli, former defendant in the controversial AutoAdmit case, has filed a lawsuit in Pennsylvania state court against the two plaintiffs in that case, their lawyers, ReputationDefender and one of its employees, and the shadowy "T14 Talent." He alleges wrongful initiation of civil proceedings, abuse of process, libel, slander, false light invasion of privacy, tortious interference with contract, and unauthorized use of name or likeness. It looks like Ciolli has outed one of the pseudonymous defendants in the AutoAdmit case -- "pauliewalnuts."

Here's the complaint -- we're still digesting it.

Update: I didn't mean to be snarky about this lawsuit. Assuming that his allegations are true, I have a lot of sympathy for Ciolli, and he appears to have some actionable claims. Marc Randazza, his attorney in the AutoAdmit case, has a thoughtful post on the new lawsuit.

"AK47" Files Motion to Quash in AutoAdmit Case

Sam Bayard — Thu, 28 Feb 2008 10:59:09 -0500

The AutoAdmit case (formerly Doe v. Ciolli) never fails to satisfy. If the whole situation were not absurd enough already, one of the pseudonymous posters going by the handle "AK47" has filed a motion to quash a subpoena issued by the plaintiffs to AT&T seeking information about his identity. The plaintiffs apparently were able to tie a comment attributed to AK47 in the Amended Complaint to an IP address owned by AT&T. (I'm not going to reproduce the statement here, but if you're interested, his pointless and despicable comment is found in paragraph 49 of the Amended Complaint.)

Back in January, the federal district court in Connecticut authorized the plaintiffs to issue subpoenas to a number of ISPs, universities, and websites demanding information about
the identities of the the pseudonymous posters named in the lawsuit. According to AK47's brief in support of his motion to quash, he received notice of the subpoena from AT&T on or around February 18, and it stated that he had ten days to take legal action to prevent AT&T from divulging his information. Instead of filing a motion to quash in California federal court, AK47 took action in federal court in Connecticut, where the main action in the lawsuit is taking place.

AK47 represented himself on the motion to quash, but he is not your average pro se litigant. From the looks of the brief and the fact that he was posting on AutoAdmit in the first place, it's fair to say that he is probably a law student or lawyer. Not a great one, however. As Marc Randazza points out, the brief leaves something to be desired, which is too bad because there are strong First Amendment arguments why the court shouldn't allow AT&T to uncover AK47's identity because his statement is pure opinion. Maybe that's too harsh of an assessment of the brief, given that the poor guy only had ten days to prepare and probably had no prior expertise in an admittedly complicated area.

AK47's got the overall idea right, but he forefronts cases that are not particularly helpful to his cause, like Doe v. 2TheMart.com, 140 F. Supp.2d 1088 (W.D. Wash. 2001), Columbia Insurance v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999), and Sony Music Entertainment v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004). He finally gets to more helpful cases like Doe v. Cahill, 884 A.2d 451 (Del. 2005), and Krinsky v. Doe 6, H030767 (Cal. Ct. App. Feb. 6, 2008), but the argument doesn't hang together particularly well. This is somewhat embarassing for us at CMLP because it's apparent that sections of the brief, specifically those discussing anonymity case law in California and Connecticut, are based rather closely on our legal guide's state pages on anonymity. Then again, it's not so embarassing; these pages are meant to help educate our readers about legal issues, not to be inserted directly (or nearly directly) into a brief. In any event, I guess imitation is the highest form of flattery, although AK47 could have done a better job in complying with our CC license, which requires attribution.

Putting aside the clumsy handling of the case law, AK47 has a powerful argument that his comment, while childish, offensive, and hurtful, is probably not actionable because it cannot reasonably be understood as stating facts about the plaintiffs. If his comment is constitutionally protected opinion (at least for purposes of the libel claim), this raises an interesting question of whether an intentional or negligent infliction of emotional distress claim brought by a private plaintiff can ever be based on a statement of opinion, a question left open by Hustler Magazine v. Falwell, 485 U.S. 46 (1988), and which may be of importance on appeal in the Snyder v. Phelps case. Unfortunately, the brief fails to raise the issue with any clarity. As always, we'll keep our eyes out for developments.

Highlights from the Legal Guide: Deciding Whether and How to be Anonymous

CMLP Staff — Mon, 18 Feb 2008 00:08:53 -0500

This is the third in a series of posts calling attention to some of the topics covered in the Citizen Media Legal Guide we published in January. As we roll out new sections of the guide each month, we will highlight some of the more important topics in blog posts.

In the first two posts we discussed choosing a business form for your online activities and the issues associated with selecting a platform for online speech. In this post we discuss the legal and practical issues you should consider if you wish to engage in anonymous speech online.

Deciding Whether and How to be Anonymous

Putting aside the possible legal challenges to anonymity for the time being, there are some practical considerations that you should think about before deciding to carry out your online publishing activities anonymously or pseudonymously.

There are good reasons to publish your blog or website under your real name. Using your real name tends to increase your credibility. Many readers will be inclined to discount anything published anonymously, and for other readers it creates a presumption of unreliability that can be difficult to overcome. You may want to distance yourself from these assumptions, even if you find them unjustifiable. Using your real name may also help you develop a reputation as a quality provider of information and/or commentary. Finally, using your real name promotes transparency. If people know who you are, it is easier for them to determine whether you have a potential bias or conflict of interest when it comes to certain topics.

On the other hand, you may have compelling reasons to publish your blog or website anonymously. Publishing anonymously may protect you from retaliation by those who don't like what you write. This is a real possibility if you write about those with power over you such as your employer or engage in whistleblower activity. You could be harassed or fired from your job for what you write, even if the person who objects to your speech does not have a valid legal claim against you. In some places, what you write could threaten your safety or lead to your arrest and detention by political authorities. In these situations, there are good reasons for hiding your online identity. Alternatively, you may want to engage in lively debate on local politics without being judged based on widely known personal attributes, or you might want to discuss sensitive topics without being discovered by friends and family. These reasons, while less dramatic, are no less justifiable.

As we discuss in the Potential Legal Challenges to Anonymity section of this guide, you should be aware that publishing anonymously will not necessarily stop someone from bringing a "John Doe" lawsuit against you and using court procedures to obtain your identity from your Internet service provider or web host. It is a misconception that you can act with impunity when you post anonymously or pseudonymously. However, the law does provide some protection for anonymous online speech. You can read more about these protections in the section on Legal Protections for Anonymous Speech.

In the end, this is a personal decision, and you will have to decide based on your own preferences and assessment of the relevant risks.

Potential Legal Challenges to Anonymity

A common misconception is that you cannot be sued for blogging or posting material anonymously or pseudonymously because your identity is forever hidden. In fact, there are legal procedures that individuals, companies, and the government can use to discover the identity of an anonymous or pseudonymous online speaker under certain circumstances.

In the civil litigation context, the legal system provides for a kind of lawsuit called a "John Doe" lawsuit, in which a plaintiff sues an unknown defendant -- for example, an anonymous blogger who allegedly libeled the plaintiff or revealed the plaintiff's confidential information. These suits may also be called "Jane Doe" or "Jean Doe" suits if it appears that the anonymous defendant is female. Once a party has filed a John Doe lawsuit, the rules of court procedure give the plaintiff tools to uncover the defendant's identity.

The most important of these tools is a subpoena: a legal order commanding the person or organization named in the subpoena to provide information or testimony at a specified time and place about a matter concerned in an investigation or a legal proceeding. In this type of case, the party issuing the subpoena usually demands that your Internet service provider (ISP), email provider, or web host produce documents or information that will reveal your identity.

You should be aware that sometimes plaintiffs file John Doe lawsuits against anonymous Internet users only to expose their identities, not because they want to pursue a legally valid claim against them.

How can you protect yourself from being exposed through a lawsuit? There are technical precautions you can take to protect your anonymity, so that, even if someone issues a subpoena to your ISP, email provider, or web host, those sources will not have useful information about your identity. Please see the How to Maintain Your Anonymity Online section of this guide for details.

You also have the legal right to contest a subpoena seeking to reveal your identity. You usually do this by filing a "motion to quash" the subpoena, which is discussed below.

What happens when a subpoena is issued? It depends a lot on whether you know about it. If you don't know about the subpoena, then you cannot challenge it in court, and your service provider may give up your identity without much of a fight. Luckily, the chances of you knowing about the subpoena are good (or at least they are getting better). If you find out about a subpoena demanding the disclosure of your identity, you should consider hiring a lawyer and moving to "quash" (i.e., challenge) the subpoena.

How will you know about the subpoena? The hard reality is that there is no assurance that you will know when a subpoena is issued. Nevertheless, it is becoming more and more common for service providers to notify their clients before responding to subpoenas that ask for identifying information. You might check with your ISP or e-mail service about its policy ahead of time. Some service providers have clauses in their terms of use or privacy policy stating that they make efforts to notify customers before responding to subpoenas of this kind. Please see the Getting Your Words and Other Content Out to the World section for details on locating a web host or service provider that helps protect your anonymity. In the past, some ISPs have even taken it upon themselves to challenge subpoenas asking for identifying information about their clients.

Furthermore, courts in many states require that a plaintiff make reasonable efforts to notify the anonymous Internet speaker before obtaining disclosure of his or her identity. Unfortunately, this requirement only comes up if the plaintiff is required by state procedure to request permission from a court in order to issue the subpoena (which is often the case when a subpoena is issued very early in a lawsuit). The required efforts often including posting a notice about the subpoena on the website or message board where the complained-of statements appeared. Alternatively, the plaintiff may ask the service provider to send a notice to the anonymous poster (the ISP, email provider, or web host usually will have the email and/or physical address of the client, hence the reason for the subpoena in the first place).

Keep in mind, however, that neither of these practices is universal, and there is no guarantee that you will be notified before your identity is disclosed.

If you are notified about a subpoena, how can you protect your identity? In general, judges do not review subpoenas as they are issued. Instead, you need to file a motion to block (or, in legal jargon, "quash") the subpoena.

The amount of time you have to file a motion to quash the subpoena is usually short -- typically around seven days -- so you need to move fast. You should ask your ISP or other provider for a copy of the subpoena, so that you can determine the court under whose authority the subpoena was issued. Assuming you want to challenge the subpoena, you should also contact a lawyer who can file a motion to quash with that court. Because of the generally short time limit for responding to subpoenas, your lawyer may need to file a request for an extension of time to file the motion.

In finding a lawyer to represent you, one option is to contact a local lawyer. Also, there are certain public interest groups, such as Public Citizen and the Electronic Frontier Foundation, and cyberSLAPP.org that advocate for free speech online and might be interested in assisting you.

You may want to point your lawyer in the direction of the following cases, which are highly protective of Internet anonymity:

Doe v. Cahill, 884 A.2d 451 (Del. 2005)
Dendrite Int'l v. Doe, 775 A.2d 756 (N.J. App. Div. 2001)
Mobilisa v. Doe, 170 P.3d 712 (Ariz. Ct. App. 2007)

You may also want to show your lawyer the following briefs for purposes of crafting legal arguments:

Doe's appellate brief in Cahill
Amicus brief in Cahill
Doe's brief in Dendrite
Amicus brief in Mobilisa
Orthomom's brief in Greenbaum v. Google, 845 N.Y.S. 2d 695 (N.Y. Sup. Ct. 2007) .

For more information on the legal standards applied by courts before allowing a plaintiff to uncover an Internet speaker's identity, see the Legal Protections for Anonymous Speech section and your relevant state law section on anonymous speech in this guide.

Keep in mind that it might not always be worth it to challenge a subpoena seeking disclosure of your identity. It can be a costly process involving high legal fees, and there is no guarantee that hiring a lawyer will enable you to successfully challenge the subpoena. You should think carefully about whether your anonymity is worth the time and money required to protect it.

Because of the risks and costs associated with fighting a subpoena, you are better off taking steps to minimize the identifying information you provide about yourself if anonymity is important to you. You'll find some useful information in this regard in the How to Maintain Your Anonymity Online section of the legal guide.

For more information on responding to subpoenas, see the section on Responding to Subpoenas in this guide. For information about defending against lawsuits generally, please see the Responding to Legal Threats section.

Swartz v. Does: Tennessee Couple Sues Anonymous Author(s) of Local Blog for Defamation and Invasion of Privacy

Sam Bayard — Wed, 13 Feb 2008 13:55:14 -0500

On Monday, a prominent couple from Old Hickory, Tennessee sued three anonymous defendants for defamation and invasion of privacy over statements appearing on the Stop Swartz blog and craigslist. The plaintiffs, Donald and Terry Keller Swartz, buy and sell a lot of real estate in Old Hickory, and a bit of local political maneuvering on their part seems to have earned them some enemies. The purpose of the Stop Swartz blog, which criticizes the Swartzes' real estate activties and other aspects of their personal and political lives, is self-described as sharing "the truth about Don and Terry and their actions and activities in and around Old Hickory," and it encourages readers to submit their own "Swartz incident[s]."

The Swartzes' complaint, filed in Tennessee state court, alleges that the blog's author and an unknown accomplice posted false and defamatory statements about them on the blog, including statements accusing them of committing arson, evicting renters "without a moments notice," and failing to record property sales in a local registry. Additionally, the complaint alleges that the blog's author violated Terry Keller Swartz's privacy by re-publishing a statement posted anonymously on craigslist that revealed that she was an "ex-addict." Charles Sizemore, the Swartzes' attorney, told Tennessean.com that he intends to subpoena Google -- the owner of Blogger, which hosts Stop Swartz -- to uncover the identity of the blog's author.

The most novel aspect of the case from a legal point of view is the Swartzes' claim that a posting on Stop Swartz invaded their privacy by encouraging readers to stalk them. Acccording to the complaint, the post read:

When you see a Swartz, no matter how trivial it may seem, leave a comment. Extra points if you observe them outside the village. This serves two purposes: First, it helps us all to keep tabs on Don and Terry and to know what they are up to. Second, it sends a clear message to Don and Terry that their actions are not being ignored . . . . We will tolerate their crap no longer.

It is not clear what kind of invasion of privacy claim the Swartzes mean to make here. There are three kinds of invasion of privacy claim: (1) intrusion on seclusion -- which involves an intrusion into a place where the plaintiff has an expectation of privacy; (2) publication of private facts -- which involves publication of true but private facts about the plaintiff, in a manner that is highly offensive to a reasonable person; and (3) false light invasion of privacy -- which involves publication of true facts in such a way as to cast the plaintiff in an unfairly negative light. While revealing that Terry Swartz is an "ex-addict" fits snugly into category (2), allegedly encouraging community members to "stalk" the Swartzes does not easily fit into any of these categories. It will be interesting to see how the plaintiffs develop this claim and whether the court will have any patience with it.

We'll keep an eye on this one.

Krinsky v. Doe 6: New Decision from California Provides Strong Protection for Anonymous Speech

Sam Bayard — Thu, 07 Feb 2008 19:18:19 -0500

A California appellate court issued a new anonymity decision yesterday in Krinsky v. Doe 6, H030767 (Cal. Ct. App. Feb. 6, 2008). (For background on the facts of the case, see the CMLP database entry, Krinsky v. Doe 6.) In line with the recent trend towards increased protection for anonymous speech online, the California court came out with a test that puts a significant evidentiary burden on a plaintiff before allowing disclosure of an anonymous Internet speaker's identity.

The court explicitly rejected the lenient "good faith" standard applied in In re Subpoena Duces Tecum to America Online, 2000 WL 1210372 (Vir. Cir. Ct. Jan. 31, 2000), indicating that this test "offers no practical, reliable way to determine the plaintiff's good faith and leaves the speaker with little protection." Interestingly, however, the court also declined to follow Doe v. Cahill, 884 A.2d 451 (Del. 2005), arguing that the "summary judgment" terminology used in that case is "unnecessary and potentially confusing."

Nevertheless, the Krinksy test functions a lot like the Cahill test, with different language used to describe what's going on. Krinsky requires a plaintiff to make a "prima facie showing" that he or she has a valid legal claim against the anonymous speaker before allowing disclosure of the speaker's identity. The court made it clear that the prima facie showing required Krinsky to bring forward evidence (not just allegations) to support each element of her claims, except for those elements that were beyond her control or dependent on the identity of the defendant. Because this test requires evidence, appears to offer the defendant the opportunity to introduce counter-arguments and evidence, and includes a softening of the test for elements outside the plaintiff's control, it's hard to pinpoint how this is different from the operative part of the Cahill test.

Applying it to the evidence before it, the court came to the wholly justified conclusion that your average bit of forum "flaming" and "juvenile name-calling" cannot reasonably be understood as stating actual facts about a person, and thus it is opinion protected by the First Amendment. The court's language is quite compelling (at least if you buy in to U.S.-style protection for speech or you're a forum troll that wants to go about your business relatively unfettered):

We likewise conclude that the language of Doe 6's post, together with the surrounding circumstances -- including the recent public attention to SFBC's practices and the entire "SFBC" message-board discussion over a two-month period -- compels the conclusion that the statements of which plaintiff complains are not actionable. Rather, they fall into the category of crude, satirical hyperbole which, while reflecting the immaturity of the speaker, constitute protected opinion under the First Amendment. It hardly need be said that this conclusion should not be interpreted to condone Doe 6's rude and childish posts; indeed, his intemperate, insulting, and often disgusting remarks understandably offended plaintiff and possibly many other readers. Nevertheless, "the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection."

Aren't you just dying to know what Doe 6 (aka "Senor_Pinche_Wey") actually said? Well, I'm not going to get into that. If you're too lazy to wade through the court opinion, Ars Technica has the juicy details.

Goodale TV on CDA 230 and AutoAdmit

CMLP Staff — Mon, 04 Feb 2008 18:22:03 -0500

Sam Bayard blogged previously about James Goodale's article on CDA 230 and the highly publicized AutoAdmit case. In the article, Goodale argues that CDA 230, the federal law that shields providers of "interactive computer service[s]" from liability for defamation and other torts for publishing the statements of third parties, should be amended to impose liability in cases where a website operator "knowingly causes defamation by refusing to take down libelous posts."

On Sunday, on his show "Digital Age," Goodale moderated a discussion between Michael Fertik, the CEO of ReputationDefender.com, and Beth Simone Noveck, a professor at New York Law School, about CDA 230, anonymity, and the AutoAdmit case.

You can also watch it on Google Video.

(Note: James Goodale is on the board of advisors for the CMLP.)