FAQ about John Doe Anonymity -- Chilling Effects Clearinghouse

 Chilling Effects Clearinghouse > John Doe Anonymity > Frequently Asked Questions
Frequently Asked Questions (and Answers) Recent C&Ds
about John Doe Anonymity Important legal notice
regarding disclosure of you
account information, Arista
Records, Inc. et. al., July
Q: What is a subpoena (also spelled "subpena")? 30, 2004
Q: How is Internet anonymity affected by John Doe lawsuits? Re: Demand for
Q: Why is anonymous speech important? Immediate Take-Down:
Q: Is anonymous speech a right? Notice of Infringing Activity,
Q: How do CyberSLAPP plaintiffs discover the identity of anonymous Internet critics? Microsoft [via Adelphia],
Q: Don't judges review subpoenas before they are sent to ISPs? September 20, 2007
Q: Isn't my ISP required by law to tell me if someone asks for my Internet-usage records and Notice of Subpoena in
identity? Sports Authorty vs. 100
Does, The Sports Authority
Q: What is a "motion to quash" a subpoena?
Yahoo! Notice of Agreed
Q: What should I do if I receive notice that my ISP has received a subpoena for my data?
Order, [Sender], February
Q: How much time would I have to try to fight a subpoena? 11, 2004
Q: What are the typical claims behind a CyberSLAPP suit? Demand letter on behalf
Q: How do judges decide whether to let a subpoena go forward? of Donald Luskin, [Sender],
Q: What are some of the important cases in this area of law? October 29, 2003
Q: Can I do anything to help change this situation? more
Q: What other resources are available?
Q: Can someone ask for my identity even if I am not the Defendant in the case? Related News
Q: I am in California. Do I have a right to both resist such a subpena and to ask a court to throw out
RIAA lawsuits help
the case, right away, and award me attorneys fees? terrorists, Kai Stinchcombe
Q: What are the key federal decisions involving anonymous speech? - Stanford University,
Q: Aren?t people required to explain why they?re subpoenaing my identity and other information? p2pnet.net News, April 8,
Q: I signed a confidentiality/privacy agreement with my ISP that provides that they will not release my 2004
information. Doesn?t that protect me? Florida Court Sends
Q: I don?t know whether my ISP keeps track of web sites I?ve visited or other personal online RIAA Away, Wired News
activity. Could a subpoena include information like that? Report, Wired News, April
1, 2004
Q: What does "respond" to the subpena mean?
Music industry hit all
Q: Can an ISP or the host of the message board or chat room be held liable for defamatory of
wrong notes in court, Tyler
libelous statements made by others on the message board? Hamilton, Toronto Star,
Q: Can my ISP or the host of a message board be held liable for defamatory statements I make on April 5, 2004
the grounds that they are a "publisher" or "republisher" of the information? New RIAA file-swapping
Q: Must an ISP or message board host delete postings that someone tells him/her are defamatory? suits filed, John Borland,
Can the ISP or message board delete postings in response to a request from a third party? CNET News.com, March
Q: Where can I find more information about the RIAA's "John Doe" lawsuits? 24, 2004
Q: My ISP tells me it's been asked to turn over my name as part of a lawsuit against hundreds of Congress Eyes Internet
"John Does" in a faraway state. What can I do? Fraud Crackdown, David
McGuire, E-Commerce
Q: I use file sharing software. What can I do to make sure I'm not sued by the RIAA?
Times, February 15, 2004
more
Question: What is a subpoena (also spelled "subpena")?
Related
Answer: A subpoena is a formal demand that a person or company produce evidence in or for a civil
Resources
or criminal lawsuit. A subpoena duces tecum (the kind most commonly used in John Doe cases)
requires only the production of identified documents or categories of documents. California Anti-SLAPP
Project, (reference)
>>top Cyberslapp.org,

Frequently Asked
Questions (and
Question: How is Internet anonymity affected by John Doe lawsuits?

http://www.chillingeffects.org/johndoe/faq.cgi#QID31[8/27/2009 7:57:00 AM]

FAQ about John Doe Anonymity -- Chilling Effects Clearinghouse

Answers)
Answer: Often called "CyberSLAPP" suits, these lawsuits typically involve a person who has posted
anonymous criticisms of a corporation or public figure on the Internet. The target of the criticism then
files a lawsuit so they can issue a subpoena to the Web site or Internet Service Provider (ISP) involved
and thereby discover the identity of their anonymous critic. The concern is that this discovery of their
identity will intimidate or silence online speakers even though they were engaging in protected
expression under the First Amendment.

>>top

Question: Why is anonymous speech important?

Answer: There are a wide variety of reasons why people choose to speak anonymously. Many use
anonymity to make criticisms that are difficult to state openly - to their boss, for example, or the
principal of their children's school. The Internet has become a place where persons who might
otherwise be stigmatized or embarrassed can gather and share information and support - victims of
violence, cancer patients, AIDS sufferers, child abuse and spousal abuse survivors, for example. They
use newsgroups, Web sites, chat rooms, message boards, and other services to share sensitive and
personal information anonymously without fear of embarassment or harm. Some police departments run
phone services that allow anonymous reporting of crimes; it is only a matter of time before such
services are available on the Internet. Anonymity also allows "whistleblowers" reporting on government
or company abuses to bring important safety issues to light without fear of stigma or retaliation. And
human rights workers and citizens of repressive regimes around the world who want to share
information or just tell their stories frequently depend on staying anonymous – sometimes for their very
lives.

>>top

Question: Is anonymous speech a right?

Answer: Yes. Anonymous speech is presumptively protected by the First Amendment to the
Constitution. Anonymous pamphleteering played an important role for the Founding Fathers, including
James Madison, Alexander Hamilton, and John Jay, whose Federalist Papers were first published
anonymously.

And the Supreme Court has consistently backed up that tradition. The key U.S. Supreme Court case is
McIntyre v. Ohio Elections Commission. http://www.eff.org/Legal/Cases/mcintyre_v_ohio.decision

>>top

Question: How do CyberSLAPP plaintiffs discover the identity of anonymous Internet critics?

Answer: CyberSLAPP plaintiffs usually get the personal information you gave an ISP or online
message board when you signed up (name, address, telephone number, etc.). Some web sites that
host discussion boards might only have your e-mail address, in which case a second subpoeana to the
ISP that hosts that address will reveal your identity. In many cases, even more detailed information
about your use of the Internet can be obtained; it's important to realize that when you go online, you
leave electronic footprints almost everywhere you go. (With advanced knowledge of the Internet,
however, there are ways to cover your tracks.)

>>top

Question: Don't judges review subpoenas before they are sent to ISPs?

Answer: No. The issuing of civil subpoenas is not monitored by the court handling the case. Under the
normal rules of discovery in civil lawsuits, parties to a suit can simply send a subpoena to anyone they

http://www.chillingeffects.org/johndoe/faq.cgi#QID31[8/27/2009 7:57:00 AM]

FAQ about John Doe Anonymity -- Chilling Effects Clearinghouse

believe has information that could be useful. That information doesn't even have to be relevant to the
lawsuit, as long as it could possibly lead to the discovery of relevant information. The only way that a
court will evaluate an identity-seeking subpena is if either the ISP or the target of the subpoena files a
motion asking the judge to block the subpoena. Unfortunately, in practice that rarely happens. That is
because these subpoenas usually have a short, roughly 7-day deadline, and because many people
never even find out that their Internet data has been subpoenaed.

>>top

Question: Isn't my ISP required by law to tell me if someone asks for my Internet-usage records
and identity?

Answer: Unfortunately, in practice CyberSLAPP subpenas are rarely challenged becaue ISPs often fail
to notify the individual who's personal information is sought. Even when they do, the short deadline
(often as little as 7 days) does not provide enough time for the speaker to find and hire an attorney and
the attorney to prepare the Constitutional arguments necessary to defend against the subpena.

>>top

Question: What is a "motion to quash" a subpoena?

Answer: This is a formal request for a court to rule that your information should not be given to the
requesting party. This normally includes the request, plus a legal brief (sometimes called a
memorandum of points and authorities) explaining why, by law, your information should not be turned
over. Samples of briefs filed in John Doe cases are available at:

EFF Archive, Cullens v. Doe, http://www.eff.org/Privacy/Anonymity/Cullens_v_Doe/

http://www.citizen.org/litigation/briefs/IntFreeSpch/articles.cfm?ID=5801

>>top

Question: What should I do if I receive notice that my ISP has received a subpoena for my data?

Answer: First you should decide whether you wish to fight to protect your identity, Internet usage
records, or whatever else is being sought. You might want to ask your ISP for a copy of the subpoena if
they haven't already provided one. If you decide to fight it, you should inform the ISP immediately, and
you may want to request that they delay compliance to give you time to find a lawyer. Then find a
lawyer, who will file a motion to have the subpoena thrown out. (If your lawyer can later prove that the
lawsuit was frivolous, you may be able to recover legal fees if your state has passed an anti-SLAPP
statute.)

>>top

Question: How much time would I have to try to fight a subpoena?

Answer: The ISP's deadline for complying with a subpoena can vary depending on the judge, the
jurisdiction where the case was filed, and other factors. A typical deadline is 7 days. This isn't much
time, so again you may want to request an extension of the deadline from the ISP and the court so your
lawyer can prepare your challenge to the subpoena.

>>top

Question: What are the typical claims behind a CyberSLAPP suit?

Answer: The most common complaints by CyberSLAPP plaintiffs are defamation, trademark or
copyright infringement, and breach of contract. Speech that involves a public figure - such as a

http://www.chillingeffects.org/johndoe/faq.cgi#QID31[8/27/2009 7:57:00 AM]

FAQ about John Doe Anonymity -- Chilling Effects Clearinghouse

corporation - is only defamatory if it is false and said with "actual malice." It also must be factual rather
than an expression of opinion. In the US, because of our strong free speech protections, it is almost
impossible to prove defamation against a public figure. Trademark and copyright complaints typically
claim that defendants have violated intellectual property rights by using the name of a corporation or its
products, or by quoting from some of their copyrighted materials such as an annual report. In reality, the
First Amendment includes a clear right to criticize and discuss corporations and their products, and the
law includes clear exceptions for the "fair use" of protected material for those purposes. Breach of
contract suits often involve a claim that anonymous speakers might be employees who have violated a
contract by releasing confidential information. Of course, the right to anonymous speech is meaningless
if a corporation can unmask your identity at will because you might be an employee breaking a promise
of confidentiality.

>>top

Question: How do judges decide whether to let a subpoena go forward?

Answer: This is a very new area of the law, and there are few well-established principles. The courts
do have a duty to balance the right of anonymity against the need to prevent true defamation. So far
there have been both good and bad rulings from judges; fortunately several have ruled that the plaintiff
must prove that his case has at least a theoretical chance of prevailing before anonymity can be
stripped away. Other cases have established a set of key factors to be used in judging anonymity-
stripping subpoenas. In most of these the key factors are 1) that the party seeking the subpoena
provide evidence that the identity is needed; 2) that the identity is directly needed for a key element in
the case; 3) and that the identity information is not otherwise available to the party seeking it. While not
yet firmly entranched in the law, these common-sense principles are clearly the right way to ensure that
First Amendment rights are protected while still allowing identity to be revealed when there is a genuine
need to do so.

>>top

Question: What are some of the important cases in this area of law?

Answer: Important CyberSLAPP cases include Dendrite v. Does,

http://www.citizen.org/documents/dendriteappeal.pdf,
Melvin v. Doe, http://legal.web.aol.com/decisions/dlpriv/melvinop.html,
Doe v 2TheMart.com, http://www.eff.org/Cases/2TheMart_case/20010427_2themart_order.html,
Global Telemedia International v. Doe, http://www.casp.net/busted.html. Additional information about
these and other cases can be found by searching the Internet or looking on the Web sites listed below.

>>top

Question: Can I do anything to help change this situation?

Answer: You can do several things. Be educated about your rights. Find out your ISP's policy on the
handling of subpoenas, and encourage them - and any Web sites you frequent - to adopt good policies,
especially a pledge to notify you of any subpoena before any private information is disclosed.
Encourage your state legislators to pass legislation requiring such notice, and press them to amend
state anti-SLAPP statutes to explicitly include Internet anonymity cases.

>>top

Question: What other resources are available?

Answer: Web sites dealing with this issue include:

www.aclu.org,
www.citizen.org,

http://www.chillingeffects.org/johndoe/faq.cgi#QID31[8/27/2009 7:57:00 AM]

FAQ about John Doe Anonymity -- Chilling Effects Clearinghouse

www.eff.org,
www.epic.org,
www.johndoes.org,
www.casp.net,
www.cybersecuritieslaw.com,
cyber.findlaw.com/expression/censorship.html

>>top

Question: Can someone ask for my identity even if I am not the Defendant in the case?

Answer: Yes. The rules of civil discovery allow a party to a lawsuit (the plaintiff or defendant) to ask
anyone for any information that may lead to the discovery of relevant evidence to their case. However,
your ability to quash such a request if you are not named as a party to the lawsuit is the same as if you
are named. You can still file a motion to quash. Below is a link to the case files for such a case:

http://www.eff.org/Cases/2TheMart_case/

>>top

Question: I am in California. Do I have a right to both resist such a subpena and to ask a court
to throw out the case, right away, and award me attorneys fees?

Answer: Yes. California has a specific statute, called the anti-SLAPP statute, that allows an early
motion to be brought to have a case dismissed if it is aimed at silencing protected expression and
participation in matters of public concern.

Code of Civil Procedure ? 425.16(b)(1) provides:

A cause of action against a person arising from any act of that person in furtherance of the person?s
right of petition or free speech under the United States or California Constitution in connection with a
public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff
has established that there is a probability that the plaintiff will prevail on the claim.

A legal brief explaining the California statute further in a case involving claims of online defamation is
available at:

http://www.eff.org/Legal/Cases/Kesler_v_Doe/

>>top

Question: What are the key federal decisions involving anonymous speech?

Answer: 1. Buckley v. American Constitutional Law Foundation (1999) 525 U.S. 182, 197-200;

2. McIntyre v. Ohio Elections Commission (1995) 514 U.S. 334. In that case, on page 357, the
Supreme Court said:

"[A]n author is generally free to decide whether or not to disclose his or her true identity. The decision in
favor of anonymity may be motivated by fear of economic or official retaliation, by concern about social
ostracism, or merely by a desire to preserve as much of one?s privacy as possible. Whatever the
motivation may be, . . . the interest in having anonymous works enter the marketplace of ideas
unquestionably outweighs any public interest in requiring disclosure as a condition of entry. Accordingly,
an author?s decision to remain anonymous, like other decisions concerning omissions or additions to
the content Amendment.
***
Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an
honorable tradition of advocacy and dissent.

http://www.chillingeffects.org/johndoe/faq.cgi#QID31[8/27/2009 7:57:00 AM]

FAQ about John Doe Anonymity -- Chilling Effects Clearinghouse

3. Talley v. California (1960) 362 U.S. 60. (holding unconstitutional a state ordinance prohibiting the
distribution of anonymous handbills)

4. Lamont v. Postmaster General (1965) 381 U.S. 301, 307 (finding unconstitutional a requirement that
recipients of Communist literature notify the post office that they wish to receive it, thereby losing their
anonymity);

5. ACLU of Georgia v. Miller (N.D. Ga. 1997) 977 F. Supp. 1228 (striking down a Georgia statute that
would have made it a crime for Internet users to ?falsely identify? themselves online).

>>top

Question: Aren?t people required to explain why they?re subpoenaing my identity and other
information?

Answer: Not with the initial request. The reasons for the subpena are only provided if the subpena is
challenged, through a motion to quash. In opposing the motion to quash, the person seeking the
information must demonstrate, at a minimum, that it is likely to lead to the discovery of information that
would be useful in a lawsuit.

>>top

Question: I signed a confidentiality/privacy agreement with my ISP that provides that they will
not release my information. Doesn?t that protect me?

Answer: No. Most privacy agreements state that information will be turned over in response to legal
requests, and a subpena is such a request. Even if the agreement does not say so, a legally issued
subpoena overrides such agreements as a matter of public policy. Each ISP has a different policy about
notifying users when their information has been subpoenaed, but they cannot simply ignore a subpoena
under the law without risking legal santion themselves.

>>top

Question: I don?t know whether my ISP keeps track of web sites I?ve visited or other personal
online activity. Could a subpoena include information like that?

Answer: Any information that your ISP has may be subject to a subpoena, including information you
may keep in calendars, preferences, "myXXX" systems hosted by your ISP, as well as log files.
Different ISPs keep different kinds of records of customer behavior. Ask your ISP to be certain that you
know what information they maintain about you.

>>top

Question: What does "respond" to the subpena mean?

Answer: Usually, it means that the ISP will give the requested information to the requesting person. In
some cases, ISPs have resisted requests for information on behalf of their customers, but this is not
the norm. Unless specifically told differently by your ISP, you should assume that your ISP will turn over
your information as part of its response.

>>top

Question: Can an ISP or the host of the message board or chat room be held liable for
defamatory of libelous statements made by others on the message board?

Answer: No. Under 47 U.S.C. sec. 230(c)(1): "No provider or user of an interactive computer service

http://www.chillingeffects.org/johndoe/faq.cgi#QID31[8/27/2009 7:57:00 AM]

FAQ about John Doe Anonymity -- Chilling Effects Clearinghouse

shall be treated as the publisher or speaker of any information provided by another information content
provider." This provision has been uniformly interpreted by the Courts to provide complete protection
against defamation or libel claims made against an ISP, message board or chat room where the
statements are made by third parties. Note that this immunity does not extend to claims made under
intellectual property laws.

>>top

Question: Can my ISP or the host of a message board be held liable for defamatory statements I
make on the grounds that they are a "publisher" or "republisher" of the information?

Answer: No. Federal law provides: "No provider or user of an interactive computer service shall be
treated as the publisher or speaker of any information provided by another information content
provider." This has been interpreted to protect hosts of discussions between other people against
defamation and libel claims as a "republisher" of the information. Note that this protection does not
extend to claims under intellectual property laws.

>>top

Question: Must an ISP or message board host delete postings that someone tells him/her are
defamatory? Can the ISP or message board delete postings in response to a request from a
third party?

Answer: 47 U.S.C. sec. 230 gives most ISPs and message board hosts the discretion to keep postings
or delete them, whichever they prefer, in response to claims by others that a posting is defamatory or
libelous. Most ISPs and message board hosts also post terms of service that give them the right to
delete or not delete messages as they see fit and such terms have generally been held to be
enforceable under law.

>>top

Question: Where can I find more information about the RIAA's "John Doe" lawsuits?

Answer: The Electronic Frontier Foundation (EFF) maintains an archive of papers and court filings at
http://www.eff.org/IP/P2P/riaa-v-thepeople.php.

>>top

Question: My ISP tells me it's been asked to turn over my name as part of a lawsuit against
hundreds of "John Does" in a faraway state. What can I do?

Answer: You should probably contact a lawyer, and suggest that the lawyer take a look at arguments
raised by the EFF, ACLU, and Public Citizen in one of these suits (e.g.,
http://www.eff.org/IP/P2P/RIAA_v_ThePeople/JohnDoe/20040202_UMG_Amicus_Memo.pdf)

>>top

Question: I use file sharing software. What can I do to make sure I'm not sued by the RIAA?

Answer: The best way to protect yourself against an RIAA lawsuit is to avoid copyright infringement.
First, ensure that you are not engaging in copyright infringement by removing any files from your shared
directory that you do not have permission to distribute. Second, change any potentially misleading file
names that might be confused with the name of an RIAA artist or song (e.g., "Madonna"). For a more
detailed explanation of this process and other ideas to avoid being treated like a criminal, visit the
EFF's page on the subject at http://www.eff.org/IP/P2P/howto-notgetsued.php.

http://www.chillingeffects.org/johndoe/faq.cgi#QID31[8/27/2009 7:57:00 AM]

FAQ about John Doe Anonymity -- Chilling Effects Clearinghouse

>>top

Maintained by Stanford Center for Internet & Society

Chilling Effects Clearinghouse - www.chillingeffects.org

disclaimer / privacy / about us & contacts

http://www.chillingeffects.org/johndoe/faq.cgi#QID31[8/27/2009 7:57:00 AM]