'John Doe' Suits Threaten Critics' Internet Anonymity
The Deseret News
By Greg Miller, Los Angeles Times
On the Internet, the joke goes, nobody knows you're a dog.
But the anonymity that has emboldened countless Internet users to
post their opinions on everything from stocks to religious cults is
increasingly being punctured by a simple legal maneuver.
Publicly traded companies and other targets of such postings are
filing a surging number of "John Doe" lawsuits that enable them to
subpoena the identities of their online critics from America Online,
Yahoo and other Internet companies.
The trend underscores the difficulties of striking a balance
between anonymity and accountability on the Internet, a medium on which
millions of people — rightly or wrongly — have come to expect the
ability to communicate anonymously with others.
Companies that file the "John Doe" suits say the tactic is one of
their few weapons against what they consider digital defamation. It
seems to be working, often forcing online critics to slink away from
message boards and in some cases exposing critics within the companies
themselves who subsequently leave or are fired.
But the growing volume of these suits — and the subsequent
dropping of them in some cases after identities have been disclosed —
makes some experts fear that the legal process is being abused by
organizations seeking only to "out" online foes.
"What we're seeing is an all-out assault on anonymity on the
Internet," said David Sobel, general counsel at the Electronic Privacy
Information Center. "No one assesses the validity of these suits before
the identities are disclosed."
Dozens of "John Doe" suits — so named because they are filed
before the real name of the defendant is known — have been filed across
the country in recent months. In one of these cases, a "John Doe"
defendant is fighting back for the first time.
On Monday in Southern California's Ventura County, attorneys
representing a man with the Internet handle "A View From Within" are
scheduled to appear in Superior Court to fight an attempt to unmask him
by Xircom Inc., a computer modem maker.
The use of the legal tactic is also spreading beyond the corporate
world. A law firm affiliated with the Church of Scientology, for
example, on Monday compelled AT&T's Internet service to reveal the name
of a subscriber who had been critical of the church in an online
newsgroup.
"It is terrifyingly easy to rip off the cover of anonymity," said
Daniel Leipold, a Santa Ana, Calif., attorney who represents the man.
Many cases center on the anonymous postings of people hiding
behind such monikers as "JPMoron" and "Eye M Rude."
Typically, the cases involve postings to message boards that are
designed as discussion forums for investors. America Online, Yahoo and
others have erected thousands of such boards, covering virtually every
publicly traded company.
The boards are as unruly as they are popular, and messages range
from thoughtful comments to profane rants to potentially libelous
allegations.
But more recent cases have prompted concerns that companies and
other organizations are often filing suits solely to expose and
intimidate online critics, threatening the Internet's still-emerging
role as a platform for free speech.
A particularly troubling example, free speech advocates say, came
recently when Raytheon Co., a Massachusetts-based defense company, filed
a John Doe lawsuit and subpoenaed the names of 21 individuals who had
made postings to a Raytheon message board operated by Yahoo. Yahoo asks
users for their names and valid e-mail addresses before allowing them to
post to message boards. After Raytheon collected the 21 names, which
included a number of company employees, the suit was dropped. Four of
the identified employees have since left the company.
"Our motive behind this suit had nothing to do with curbing free
speech," said David Polk, a spokesman for Raytheon. "We did what was
necessary to keep proprietary information from being disclosed in an
unauthorized way. We felt it was time to put the matter behind us."
But to others, the quick dropping of the suit was a sign that "in
this environment, discovery procedures are subject to abuse," Sobel
said.
The issue highlights the difficulties presented by the Internet's
emergence as a mainstream, and largely anonymous, medium. Chat rooms,
message boards and newsgroups are populated by millions of nameless
contributors, people who might have shuddered at the thought of
receiving an anonymous phone call or letter.
Before the Net, companies had a great deal more control over the
dissemination of information about them. But now everyday people can
broadcast opinions to a large audience with minimal effort. That may
lead to abuses, experts say, but it also empowers critics, investors and
corporate whistle blowers.
In the face of these changes, the legal system offers an avenue
for companies to regain some of that lost control. John Doe suits are
particularly effective because they give companies the legal authority
to subpoena information that might be relevant to the case.
Jerry Kang, a University of California, Los Angeles law professor,
said the courts give plaintiffs broad latitude to dig up such
information, and that attempts to quash subpoenas are difficult to win.
"Most judges do not like resolving discovery disputes," he said. "They
think it's like children fighting."
Federal law does nothing to prevent Internet companies from
disclosing the identities of their subscribers and users to anyone who
asks. But most Internet companies have voluntarily adopted policies by
which they release such information only when faced with a subpoena,
court order or warrant.
Some companies, including America Online, notify subscribers that
their information has been subpoenaed, and give them 14 days to respond.
But others, including Yahoo, comply without warning users.
As a result, many defendants in John Doe suits are unmasked before
they are aware they have been targeted. The defendant in the Xircom
case, for instance, found out about the suit only because it was
reported in the media.
The postings of "A View From Within" — his Yahoo moniker — are
tame by message board standards, calling executives "jokers" and saying
the sales director is "more concerned with finding his lost hair gel
than he is about sales growth."
But he also portrayed himself as an engineer at the company — a
claim his attorney says is false — and warned investors that Xircom was
trying to conceal defects in some of its products. Xircom's suit, filed
last month, accuses him of defamation and seeks at least $25,000 in
damages.
Hoping to maintain his anonymity, the man has filed a motion to
quash the subpoena for his information from Yahoo. In the motion, his
attorney argues that the subpoena is flawed on procedural grounds, but
also that it threatens protections the Supreme Court has erected around
anonymous speech.
"In an age where society is increasingly and helplessly identified
and tracked by computer databases," wrote Megan Gray, a Los Angeles
attorney representing the Xircom defendant, " ... the constitutional
protections of the channels of protest become more crucial than ever
before."
Xircom has pledged to fight the motion to quash the subpoena, and
to forge ahead with the suit.
Internet companies are becoming frequent targets of legal probes
in other legal settings as well. Increasingly, Internet companies are
being subpoenaed for electronic records in divorce proceedings and are
being asked to furnish information in criminal investigations. America
Online has been served with more than 110 warrants so far this year in
investigations involving its members.
Bridge Publications Inc., which publishes literature for the
Church of Scientology, recently took advantage of a federal law enacted
last year — the Digital Millennium Copyright Act — that allows subpoenas
to be issued even without the filing of a suit in cases involving
potential copyright infringement.
The man, known only as "Safe," had posted documents to the
alt.religion.scientology newsgroup. His attorney argues that the
postings are protected under "fair use" doctrine because they commented
on how "suppressive" some of the church's rules are, and then supported
that contention by listing 274 "crimes" against the church cited in one
of its publications.
Citing potential copyright infringement, Bridge subpoenaed records
from AT&T, which handled Safe's Internet account. After notifying Safe,
AT&T turned his name over to Bridge Publications on Monday.
Further facts
about this criminal empire may be found at
Operation Clambake and FACTNet.
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12.6.1999
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