Evan Brown reports that an Arizona state court has adopted a three part test for unmasking anonymous online speakers:
The court looked to the 2005 case of Doe v. Cahill which requires (1) that the anonymous party sought to be unmask[ed] be given notice of the proceedings, and (2) that the party seeking the identity of the anonymous party put forth sufficient facts to survive a motion for summary judgment.
Doe appealed the lower court’s order which required he be identified. On appeal, the Arizona Court of Appeals remanded the matter back to the trial court. It held that although the court correctly applied the two Cahill factors, it should have considered a third factor, namely, a balancing of the relative interests of the parties. Consideration of this third factor, the court held, would help ensure that the important First Amendment rights at issue in anonymous speech cases would be adequately protected.
I am thinking about the the first factor, that the anonymous party sought to be identified be given notice of the proceedings. I suppose the reason for this is so that this person, too, can seek consideration of his interests before the court, thereby putting some teeth into the third factor. (Otherwise “all parties'” interests cannot be considered.) But why should this only apply in cases such as this? Many third parties, possible witnesses, etc., are identified by civil discovery. Should they also be given the opportunity to object to being identified? Evidently not, because the engine driving this criterion is the First Amendment, which is not present in a typical business or tort litigation.
At least courts are setting forth standards that suggest there is no absolute right to Internet anonymity.