Anonymous Posting in the United States

By Erica Johnstone. She is a partner with Ridder, Costa & Johnstone, a San Francisco law firm focusing on intellectual property, Internet, and privacy law.

What issues lawyers must keep in mind in trying to unmask the identity of unidentified posters on the Internet.

Attorneys are increasingly called upon to advise clients about how to handle reputational harm on the Internet. The harm may vary in both kind and degree – from hurtful bullying or the surreptitious publication of intimate photos, to violent hate speech and outright defamation. Clients want to know what steps may be taken to reclaim their online reputations, and how to seek redress in a court of law.

But first, what are the ethical issues to consider and best practices to employ in seeking recourse against an individual anonymous poster?

There’s often a tension between the well-established First Amendment right to speak anonymously, and the right to seek recourse for legally actionable content. First Amendment protection of anonymous speech is vital to democracy. One of the most famous pieces of American political advocacy – The Federalist Papers – was published anonymously by James Madison, Alexander Hamilton, and John Jay under the pseudonym “Publius.” As U.S. Supreme Court Justice John Paul Stevens explained, “Anonymity is a shield from the tyranny of the majority.” (McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995).)

Given this historical backdrop, attorneys must carefully consider the First Amendment implications of forcing disclosure of the identity of the anonymous “speaker.” A frank assessment of the client’s complaint is the first step: Counsel must consider whether the content at issue is truly actionable. Legally actionable content may include impersonation or identity theft, harassment, invasion of a client’s privacy, or defamation.
Defamation is a false statement of fact about a person to a third party that tends to harm that person’s reputation. Opinions don’t count; neither does content that’s merely rude, offensive, or annoying. But statements falsely implying objective fact are actionable.

There are many good options for dealing with content that falls on the opinion end of the spectrum. One of them is asking the website to remove the offending content. Many websites are generally receptive to such requests, either on the grounds that the postings violate their terms of service, or based on the provider’s editorial judgment and compassion for victims. But speech that doesn’t rise to the level of defamation shouldn’t be used to unearth the identity of an anonymous online speaker; heavy-handedness may backfire.

Lawyers must also weigh carefully the likelihood that a third-party subpoena directed to an Internet service provider (ISP) will prompt a motion to quash – based on substantive grounds, such as failure to state a cause of action for defamation, or on procedural grounds, such as failure to obtain the subpoena from the correct court. If the ISP or account owner brings a motion to quash, courts will balance the First Amendment right to anonymous speech against a plaintiff’s rights to conduct discovery.

Courts have adopted varying standards for uncovering anonymous posters. One leading decision dealing with subpoenas designed to reveal the identity of Internet speakers is Dendrite Int’l, Inc. v. Doe No. 3 (775 A. 2d 756, 760-761 (N.J. App. Div. 2001)), which requires that: the plaintiff attempt to notify the anonymous posters that a subpoena wants them to reveal their identity; the plaintiff specify the exact statements alleged to constitute actionable speech; the court review the complaint and other information to determine whether there’s a viable claim against the anonymous defendant; the plaintiff produce sufficient evidence to support, prima facie, each element of its cause of action; and the court balance the First Amendment right against the strength of the plaintiff’s prima facie claims and the need for disclosure of the defendant’s identity.

Many states, including California, have adopted a variation of this test. (See, e.g., Doe v. Cahill, 884 A. 2d 451 (Del. 2005); and Krinsky v. Doe 6, 159 Cal. App. 4th 1154, 1169-1174 (2008) (requiring the plaintiff to come forward with sufficient evidence to establish a prima facie case on all elements of a claim that are supportable without discovery).)

Once an attorney determines that the speech at issue is actionable and that the subpoena would survive a motion to quash, litigation hold letters should be directed to the pertinent websites and ISPs. A “Doe” lawsuit then should be filed concurrently with a motion for leave of court to serve expedited discovery that is designed to unveil the identity of the anonymous speaker.

Typically, the litigation will require two rounds of subpoenas: The first round goes to the websites, to obtain relevant account information and IP addresses used to transmit or publish the unlawful content (e.g., doejohn@yahoo.com); and the second round goes to the ISP, to obtain the identity of the subscriber with that IP address at the time of the post (e.g., the real identity of “doejohn”). The subscriber will be notified by the provider and given an opportunity to move to quash.

Once an email address for the anonymous poster is obtained, counsel may be tempted to subpoena the ISP itself (Yahoo in our example) to learn details regarding the actual email messages sent and received to the account. However, attempts to obtain such content by civil subpoena – without the subscriber’s consent – are likely to fail because of specific statutory protections preventing such disclosures. (See Stored Communications Act, 18 U.S.C. §§ 2701, 2702 (expressly prohibiting ISPs from knowingly divulging the contents of electronic communications stored on behalf of subscribers); and O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 1442-1447 (2006) (section 2702 contains no exception for civil subpoenas).)

Usually it takes about a month for a subpoena to return the requested information. At that point, the plaintiff may recaption the complaint with the defendant’s name and proceed with service, litigation, and settlement discussions.
These initial steps, however, shouldn’t be undertaken without considering the profound legal issues involved in unmasking the identity of an anonymous speaker.