Tag Archives: Anonymity

Anonymous penumbras; submerged emanations

Originally posted 2011-02-15 13:30:04. Republished by Blog Post Promoter

Glenn Reynolds links-n-thinks:

ESTHER DYSON: Internet anonymity is like abortion. “I’m pro choice, but I think abortion is an unfortunate thing. I think the same thing about anonymity: Everybody should have the right to it, but it’s not something one wants to encourage.”

Maybe that’s why we’re not-so-pro-choice here.  (We happen to reject the nomenclature anyway so don’t get us started.)  Not “everybody” should have “the right to” Internet anonymity.  We’ve long objected to the anonymity premise, because not nearly enough weight is assigned its potential costs in a modern communication regime, as opposed to in the pre-Internet era.

That doesn’t mean we don’t appreciate Internet anonymity’s value in certain circumstances.  But, like abortion, we should distinguish between cases where a departure from a general rule of prohibition is justified.  Let’s don’t posit a dubious “right” when at most we mean a desideratum and, more likely, we mean something regarding which reasonable people can disagree — anonymously or otherwise.

That offensive Internet

Originally posted 2014-10-26 19:37:41. Republished by Blog Post Promoter

My  one-year-off college classmate, former document review colleague, oddly cheerful ultra-left-wing nut and bona fide genius (yeah, I know!) Brian Leiter has a short post full of useful resources about one of my favorite topics, “The Offensive Internet: Speech, Privacy, and Reputation”.

Read it while you can!

Internet anonymity still a judicial fave

Evan Brown reports:

A trial court in Arizona has quashed a subpoena served on Godaddy, issued by a plaintiff in a defamation suit against an anonymous website owner. Applying the standard articulated in the Delaware Supreme Court decision of Doe v. Cahill, 884 A.2d 451 (2005), the court held that the plaintiff had failed to present a strong enough case to overcome the defendant’s First Amendment right to speak anonymously. Under the Cahill standard, a plaintiff seeking to unmask an anonymous Internet defendant must put forth evidence sufficient to withstand a motion for summary judgment before the court will order the identity to be revealed.

We’ve discussed this issue beforemore than once. Although I am chary of the general proposition that Internet anonymity is an unalloyed good thing, this is a good policy: Where there is no defendant but a John Doe, as justified as it may be to file against unknown defendants in general, it is the court’s duty to make sure that the power of the court be utilized to obtain discovery in pursuit of a meritless claim.

Blogger anonymity upheld against John Doe defamation claims

The defendant-appellant, John Doe No.1, anonymously posted allegedly defamatory statements about the plaintiff-appellee, Cahill, on an internet blog. Cahill brought a defamation action. Seeking to serve process on Doe, Cahill sought to compel the disclosure of his identity from a third party that had the information. A Superior Court judge applied a good faith standard to test the plaintiff’s complaint and ordered the third party to disclose Doe’s identity. Doe appeals from the Superior Court’s order. Because the trial judge applied a standard insufficiently protective of Doe’s First Amendment right to speak anonymously, we reverse that judgment.

The decision in John Doe v. Cahill from the Delaware Supreme Court is here. This is the trend: Appellate courts are not permitting “John Doe” defamation actions to be their own justification. These rulings prevent plaintiffs to merely file a flimsy complaint and get quick discovery from ISP’s so plaintiffs can learn the identity of bloggers and others on the Internet who are virtually never actually committing legally actionable defamation — but who are critics the plaintiff would like identified.

Courts are not making it impossible for bona fide plaintiffs to get discovery to which they’re normally entitled. But igot-gouzenko-hoodedthey are requiring, in cases like these, that plaintiffs make a legal showing of their bona fides up front,which is eminently reasonable considering how meritless most defamation actions are.

It doesn’t do me, as a defendant, any good to win a motion to dismiss if the main thing you, as a plaintiff and the subject of my criticism, already have what you want — my identity — and are now free to get me fired, cut off from my suppliers, or shunned, as the case may be. It also removes some of the burden on defendants, who are usually financially worse off in these situations, from having to hire attorneys to quash subpoenas served on ISP’s, much less to make appearances on behalf of anonymous parties. This is a good trend.

UPDATE: More, similar news from California.

Wall Street rules

When doesn’t the law defer to Internet anonymity? Is it when lives and reputations are ruined? Do they bend when privacy is broached, families are smeared, confidences betrayed on Web servers and Internet archives and caches that never die?

Probably not. On the other hand, when there’s a publicly-traded security at stake — now that’s a problem!

John Doe in Illinois

Evan Brown lays this out so clearly it would be a shame to go through the trouble of paraphrasing:

Zynga (you know, the creator of Farmville and Mafia Wars) has filed a federal lawsuit against the operators of websites that sell virtual currency and goods for use in Mafia Wars. . . .

In federal court, you can’t start the discovery process until the parties have met to discuss certain issues (this is called a Rule 26(f) conference). But there’s an obvious chicken and egg problem in cases like this that have anonymous defendants — how do you confer with a defendant you don’t know? You’re kind of stuck if you can’t take discovery to learn who he is.

Fortunately the court can allow discovery to happen before the Rule 26(f) conference when there is good cause.

So Zynga has argued that there is good cause to allow it to serve subpoenas on Godaddy (the registrant for the MAFIAWARSDIRECT.COM, MWBLACKMARKET.COM, and MWFEXPRESS.COM domain names) and PayPal, who apparently facilitated the purchase of virtual goods.

The court agreed that Zynga should get to serve the subpoenas. But it found that the subpoenas as proposed were too broad. For example, Zynga sought all billing and account records, server logs, website content, contact information, transaction histories and correspondence for the persons or entities that purchased services from the offending sites. The court held that the limited discovery appropriate for Zynga at the early stage would only allow it to get identifying information for the site owners.

He has more on the topic of John Doe defendants here, too.

Defamation online

It’s our future.  Instapundit rounds up developments, which Julie Hilden is all over.  I’ve made my point on this topic — less a legal than a cultural observation.

Naming Names

The ultimate branding device is a person’s name, although the oft-stated truism that “every man is entitled to do business under his own name” is far from absolute.

Still and all, how about every man’s right to do business under someone else’s name, or no one’s name at all? Bob Cox’s The National Debate [UPDATE:  Link gone.  Sorry!] has a pretty interesting piece involving the use of pseudonyms. Its politcal-media angle was the nonsense involving James Guckert, alias Jeff Gannon, and in particular the supposed hullaboo over his use of an assumed name. Bob really goes to town with the use of noms de plume (remember “Andre LaPlume“?).

My favorite new thing from the article? George Soros = George Schwartz.

Don’t ask me what my name was before someone changed it for us. I just don’t know, unfortunately. I used to say it was Soros, but now, why bother?

John Doe Discovery Cases Go from Meritless to Expensive

The John Doe lawsuit filed solely for discovery purposes is not only dying, but it may become its very own tort! We addressed some of the issues and developments in this area early last month. Daniel Solove just posted to the Politech list about an important case involving anonymity on the Internet. He blogs the story on his Concurring Opinions blog, to wit:

The company filed a “John Doe” lawsuit against the anonymous blogger for a tort claim of “breach of fiduciary duty and breach of duty of loyalty.” The employee was completely unaware that a lawsuit had been filed against him.

Three months after filing the lawsuit, the company filed an emergency motion to prevent “John Doe” from posting more messages. It claimed that Doe’s posting violated the company’s anti-harassment policy. The company obtained a subpoena and served it on Yahoo. Yahoo sent an email to the employee that Yahoo would respond within 15 days unless the employee filed a motion to quash. The employee claimed he never received the email. Yahoo subsequently turned over the employee’s identity to Allegheny Energy. Afterwards, Allegheny Energy filed papers to discountinue its civil action against the employee. The employee was then fired for making the racial slur.

The employee has now sued, claiming: (1) abuse of process; (2) wrongful use of civil proceedings; (3) intrusion upon seclusion; (4) public disclosure of private facts; and (5) wrongful discharge.

This is a fascinating lawsuit that, prima facie, sounds like it has a decent likelihood of succeeding. I wonder what Walter Olson’s slant would be on this, in terms of who the “overlawyerer” is…

Final twist, from Solove:

The case also raises larger policy issues about employee speech and privacy outside of the workplace. The comment made by the blogger was quite offensive. He wrote: “[W]e were force fed ‘love thy n*****’ with [Allegheny Energy’s] DIVERSITY program.” Should a company have any business in finding out which employee made this comment and disciplining him even though he made the comment at his home?