Protections for Anonymous Online Speech

Transcription

© Practising Law Institute
Communications Law
in the Digital Age 2014
Volume Three
Co-Chairs
Jeffrey P. Cunard
Bruce P. Keller
Lee Levine
Chairman Emeritus
James C. Goodale
To order this book, call (800) 260-4PLI or fax us at (800) 321-0093. Ask our
Customer Service Department for PLI order number 49262, Dept. BAV5.
Practising Law Institute
1177 Avenue of the Americas
New York, New York 10036
12
Protections for Anonymous Online Speech
Mara Gassmann
Matthew E. Kelley
Ashley I. Kissinger
Levine Sullivan Koch & Schulz LLP
We wish to thank law students Ariel Glickman, The
George Washington University School of Law Class of
2016, and Rebecca Guiterman, New York University
School of Law Class of 2015, for their assistance in the
preparation of this outline and related materials.
While the compendium does not include every case
decided in this area of law, particularly in the
burgeoning area of copyright infringement cases
arising from digital file sharing, we endeavor to be as
comprehensive as possible. We encourage
practitioners handling subpoenas for anonymous
online speakers’ identities to provide us with
information about their cases, particularly where they
do not result in a published court decision.
If you find this article helpful, you can learn more about the subject by going
to www.pli.edu to view the on demand program or segment for which it
was written.
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Table of Contents
FORWARD: DEVELOPMENTS FROM 2013-2014 ............................................. 7
I.
INTRODUCTION ........................................................................................ 10
II. FROM PAST TO PRESENT: PROTECTIONS FOR
ANONYMOUS SPEECH ............................................................................ 11
III. EFFORTS TO UNMASK ANONYMOUS ONLINE SPEAKERS................. 13
A.
B.
C.
The Nature and Form of the Efforts ............................................. 13
Standing of Third Parties to Assert the Rights of
Anonymous Speakers ................................................................. 17
Appellate Jurisdiction................................................................... 21
IV. FIRST AMENDMENT PROTECTIONS FOR ANONYMOUS
ONLINE SPEECH ...................................................................................... 22
A.
Weighing the Online Speaker’s Right to Anonymity Against
an Aggrieved Party’s Right to Seek Redress .............................. 22
1. Expressive Speech: The Prima Facie Case or Summary
Judgment Test ......................................................................... 25
2. Infringing Speech..................................................................... 35
a. The Motion to Dismiss Test ................................................. 35
b. The Good Cause Test ......................................................... 39
c. Privacy Considerations........................................................ 41
B. Notification Requirements, Retraction Statute
Compliance, Privacy Policies, and Other Considerations ........... 42
C. Alternate Approaches .................................................................. 45
1. Anonymous Speakers as Witnesses:
The 2TheMart Test .................................................................. 45
2. Virginia: The Good Faith Test ................................................. 47
3. Other Tests .............................................................................. 49
4. Ex Parte Applications from Foreign Litigants .......................... 50
D. Criminal and Administrative Proceedings.................................... 51
1. Government Subpoenas: The Compelling
Interest/Sufficient Nexus Standard .......................................... 52
2. Criminal Defendants’ Subpoenas: Relevance,
Admissibility, and Specificity ................................................... 55
3. Challenges to Subpoenas Under
the Reporter’s Privilege ........................................................... 58
V.
ADDITIONAL PROTECTIONS FOR ANONYMOUS
ONLINE SPEECH ...................................................................................... 60
A.
B.
C.
Reporter’s Privilege ..................................................................... 61
Anti-SLAPP Statutes ................................................................... 63
Procedural Defenses ................................................................... 64
1. Personal Jurisdiction, Venue, and Undue Burden .................. 65
2. Litigation Misconduct ............................................................... 67
3. Joinder ..................................................................................... 69
4. Judicial Economy..................................................................... 70
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D.
E.
F.
Other Laws Forbidding Disclosure of
a Speaker’s Identity ..................................................................... 71
Technological Obstacles to Identifying
an Anonymous Poster ................................................................. 72
Limited Disclosures ..................................................................... 74
VI. PRACTICE POINTERS: HOW TO MINIMIZE THE RISK OF
LIABILITY FOR SUBPOENA RESPONSES ............................................. 75
A.
B.
C.
Preserve the Information Sought ................................................. 76
Notify the Anonymous Speaker ................................................... 76
Review Terms of Service and Privacy Policies ........................... 77
VII. CONCLUSION............................................................................................ 78
VIII. CASE SUMMARIES ................................................................................... 79
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ACKNOWLEDGEMENT
We wish to thank law students Ariel Glickman, The George Washington
University School of Law Class of 2016, and Rebecca Guiterman, New
York University School of Law Class of 2015, for their assistance in the
preparation of this outline and related materials.
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FORWARD: DEVELOPMENTS FROM 2013-2014
This year saw the denouement of a long-running Texas action that
illustrates why careful and thoughtful adjudication of anonymity rights in
the online context is important. In Lesher v. Doescher, plaintiff lawyer and
his wife obtained a record $13.7 million jury verdict in 2012 against
unmasked anonymous website posters who had accused them of sexual
perversion, molestation, and drug dealing. The verdict was overturned,
first by the trial court, which granted a motion for judgment notwithstanding the verdict, and then by an appellate court, which affirmed on statute of
limitations grounds, a decision that the Texas Supreme Court refused to
review this year. Notwithstanding the ultimate result, the sheer size of the
verdict rendered by a jury, not to mention the legal fees likely incurred by
the defendants, demonstrates the serious potential consequences to anonymous speakers when their identities are discovered through judicial
compulsion.
There is a core set of standards that courts generally apply in civil and
criminal cases where an anonymous speaker’s identity is sought, but the
contours of those tests are still taking shape, and the variety of tests created
by the courts continues to expand. Although the now well-established high
burden Cahill and Dendrite tests continue to be followed in civil cases
involving expressive speech, courts are demonstrating an increasing
willingness to apply lower burden standards, even where expressive
speech is at issue.
Virginia’s unique statutorily-based standard for unmasking anonymous online speakers was finally examined this year by two courts. In
Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., the Virginia Court of Appeals
upheld the constitutionality of the statute, which permits a plaintiff to
obtain identifying information regarding an anonymous speaker upon a
showing that the plaintiff has a “legitimate, good faith basis” to contend it
has been the victim of actionable conduct. The court interpreted the statute
to require the submission of evidence in support of such a showing, and
held that the plaintiff company’s submission—an explanation of its own
internal investigation of its customer database from which it concluded
that certain of its reviewers on Yelp were not, in fact, its customers as
represented—sufficed. In a decision applying the Hadeed case, Geloo v.
Doe, a Virginia trial court refused to enforce such a subpoena where the
challenged statements were nonactionable opinion. Although it is too
early to make solid predictions, it appears the Virginia courts may be on
their way to interpreting the statute in a manner that imposes a higher
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burden on subpoenaing plaintiffs than the statute’s weak “good faith
basis” language otherwise suggests.
Two more courts joined a growing chorus of courts describing
speech critical of corporations as “commercial speech” deserving of less
protection than other types of expressive speech. In Taylor v. Does 1-10,
the Eastern District of North Carolina held that the plaintiff, who
contended an anonymous speaker falsely disparaged his company,
needed only to demonstrate that at least one of his claims could survive a
hypothetical motion to dismiss in order to successfully unmask the
speaker. In Taylor, as in several other cases like it, the court reasoned
that speech critical of businesses is “commercial speech” worthy of less
First Amendment protection because it is “expression related solely to
the economic interests of the speaker and its audience.” This is the
broader of two definitions for “commercial speech” offered by the
Supreme Court in its seminal decision in Central Hudson Gas & Electric
Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980),
however, and therefore some courts might reject this characterization of
speech critical of businesses. Indeed, in Kuwait & Gulf Link Transport
Company v. Doe, the Pennsylvania Superior Court stated in dicta that
evidence that speech is economically motivated is “insufficient to
compel the classification of the [speech] as commercial speech.”
In an unusual case involving subpoenas implicating associational
(rather than speech) rights under the First Amendment, a federal district
court in California applied the balancing test used by the Ninth Circuit in
Perry v. Schwarzenegger, 591 F.3d 112 (9th Cir. 2009), which involved
associational rights. In Drummond Co. v. Collingsworth, a human rights
lawyer whose identity was already known moved to quash a subpoena
seeking information that would have revealed date, time and location
information for the times she logged into her email account. The court
quashed the subpoena under the standard set forth in Perry, finding that
the plaintiff did not show that the information was “highly relevant” to
its libel case or “carefully tailored” to minimize the intrusion on the
associational rights of the attorney.
In another case in California, Digital Music News LLC v. Superior
Court, the California Court of Appeal invoked, for the first time, the state
constitution’s right of privacy in quashing a subpoena seeking an
anonymous newspaper commenter’s identity. The court held that the
commenter’s privacy rights outweighed the subpoenaing party’s need for
the information because the commenter possibly faced retaliation from
his employer were his identity to be revealed.
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And in the criminal context, two courts have now applied the
standard set forth in United States v. Nixon, 418 U.S. 683 (1974) for
evaluating a subpoena in a criminal case—relevancy, admissibility, and
specificity. Unlike the Nixon case itself, both cases involve subpoenas
issued by criminal defendants. (A different standard—the “compelling
interest/sufficient nexus” test—has been applied to government
subpoenas.) In the case decided this year, United States v. Jackson, a
defendant sought the identity of newspaper website posters whom she
believed were prosecutors improperly making comments about the case.
A federal district court in Louisiana enforced the subpoena on the basis
of a Justice Department investigation report suggesting that the
defendant had at least a colorable claim for prosecutorial misconduct.
The requirement to notify an anonymous speaker of efforts to
unmask her received attention and emphasis this year by courts in
Michigan, Ghanam v. Does, and North Carolina, Taylor v. Does 1-10.
But several other courts failed to impose notification requirements,
sometimes leading to the unmasking of anonymous defendants without
their knowledge of the efforts to unmask and sue them.
For example, in Woodward v. Chetvertakov, a judge in the Eastern
District of Michigan granted leave to the plaintiff to issue early discovery
to third parties seeking an anonymous John Doe defendant’s identity.
Relying solely on Federal Rule 26(f), the court neither required
notification to the anonymous poster nor addressed his First Amendment
right to anonymity. And two more judges in the Northern District of
California granted ex parte applications under 28 U.S.C. § 1782(a) to
issue subpoenas for identifying information for use in foreign
proceedings. Although the possibility exists that Google, the subpoena
recipient in Thompson v. Doel, subsequently notified the anonymous
poster of the subpoena (which has been Google’s typical response to
such subpoenas), the court, like the others before it determining Section
1782(a) applications, did not require such notification. On the bright
side, however, in In re ex parte Application of Ontario Principals’
Council, another judge rejected the plaintiffs’ request for a prior restraint
order enjoining subpoena recipient Topix from notifying the anonymous
posters to its website of the issuance of the subpoena.
Courts appear to be increasingly willing to reject efforts to unmask
anonymous speakers on procedural grounds. In Digital Music News LLC
v. Superior Court, the California Court of Appeal quashed a subpoena
for an anonymous website commenter’s identity in a copyright
infringement case on the ground that the information was not properly
discoverable in the case. In In re John Doe aka “Trooper,” the Texas
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Supreme Court halted a court-ordered pre-suit deposition of Google
when the anonymous blogger the plaintiff sought to unmask made a
limited appearance and contested the court’s personal jurisdiction over
him and argued that such pre-suit discovery is improper where the court
lacks personal jurisdiction over the anonymous defendant. And in AF
Holdings, LLC v. Does 1-1058, the D.C. Circuit held that the plaintiff in
a mass copyright infringement lawsuit alleging unlawful file-sharing
failed to adequately demonstrate that the hundreds of anonymous
defendants were likely subject to the personal jurisdiction of the court—a
task the court noted the plaintiff could have accomplished with the use of
commonly available geolocation tracking software. The court also held
that the plaintiff had failed to adequately demonstrate that joinder of all
the defendants in a single case was proper.
Finally, this year marked the first in which courts addressed
subpoena recipients’ efforts to recover their attorney fees for moving to
quash the subpoenas issued to them. The results were mixed. In Mount
Hope Church v. Bash Back!, the Ninth Circuit rejected an online service
provider’s effort to recover, under Federal Rule of Civil Procedure
45(c)(1), its attorney fees. The court held that the Rule’s “undue burden”
language “is limited to harms inflicted by complying with the subpoena,”
and that “the mere need to respond to an opponent’s advocacy in our
civil justice system should [not] be viewed as unduly burdensome when
legal arguments are advanced in good faith.” But courts did award fees in
two cases litigated under state anti-SLAPP statutes expressly providing
for fee-shifting. In Doe No. 1 v. Burke, D.C.’s highest court invited the
movant to resubmit his or her request for statutory fees on remand, and in
In re Doe I, a California trial court awarded statutory fees). In Lightspeed
Media Corp. v. Smith, the Seventh Circuit upheld an award of attorney
fees as a sanction against the plaintiff for bringing frivolous retaliatory
claims against several ISPs that had challenged the plaintiff’s subpoenas
seeking identifying information about alleged online copyright
infringers.
These developments and others are detailed in the chapter below.
I.
INTRODUCTION
Millions of people communicate anonymously on the Internet every day.
They choose a login name other than their own to post comments on
websites or in other forums, they share files without sharing their names,
and they avoid providing any personal information when registering for
email addresses, social media accounts, and blogs. Many are unaware
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that their activities leave behind a trail of information that can be used to
uncover their true identities.
As the number of anonymous users of the Internet has continued to
rise, so have efforts to “unmask” them. After fifteen years of addressing
these efforts, U.S. courts are still exploring how best to apply, in the
online context, longstanding protections for anonymous speech. Basic
principles have taken root, but the contours of the law evolve each year.
Beginning with a brief discussion of the historical basis for the right
to speak anonymously on the Internet, this chapter describes the nature of
the challenges to online anonymity and the issue of who has standing to
assert an anonymous speaker’s rights. The chapter then examines the
various tests developed by courts to determine whether an anonymous
speaker should be unmasked—tests that balance the First Amendment
right of speakers to remain anonymous with the rights of other parties or
state interests. It contrasts the treatment of expressive versus infringing
speech and discusses a distinct test that has been applied when an
anonymous speaker is sought as a witness rather than as a defendant. The
chapter also addresses various non-constitutional bases for opposing the
unmasking of an anonymous speaker, including the reporter’s privilege.
It then discusses standards developed by courts in criminal and
administrative proceedings. The chapter offers practice pointers for
media entities, website operators, and others wishing to minimize legal
risk in responding to subpoenas for anonymous speakers’ identifying
information. And, finally, it includes a compendium discussing relevant
U.S. Supreme Court decisions, the seminal decisions in this area of law,
and decisions from every jurisdiction in the country.1
II.
FROM PAST TO PRESENT: PROTECTIONS FOR
ANONYMOUS SPEECH
For centuries, anonymous commentators have offered solutions for
political, social, and cultural challenges, promoted unconventional ideas,
and catalyzed community development and transformation. The works of
Mark Twain, Voltaire, Charles Dickens, Benjamin Franklin and other
1.
While the compendium does not include every case decided in this area of law,
particularly in the burgeoning area of copyright infringement cases arising from
digital file sharing, we endeavor to be as comprehensive as possible. We encourage
practitioners handling subpoenas for anonymous online speakers’ identities to
provide us with information about their cases, particularly where they do not
result in a published court decision.
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great thinkers were published under assumed names,2 and numerous
anonymous texts, including the Federalist Papers, are believed to have
decisively influenced “the progress of mankind.”3
The U.S. Supreme Court has held, on numerous occasions, that the
First Amendment grants substantial protection to anonymous speech.4
Such speech is part of the nation’s “honorable tradition of advocacy and of
dissent,”5 and its protection reflects the historical practice of “accord[ing]
greater weight to the value of free speech than to the dangers of its
misuse.”6 Although protections for anonymity were given first to the
authors of pamphlets and leaflets, the Court since has made clear that
they extend to authors of modern forms of communication, presumably
including blog posts, website comments, emails and tweets.7
2.
3.
4.
5.
6.
7.
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342-43 (1995).
Talley v. California, 362 U.S. 60, 64-65 (1960); id. (“Persecuted groups and sects
from time to time throughout history have been able to criticize oppressive
practices and laws either anonymously or not at all. . . . It is plain that anonymity
has sometimes been assumed for the most constructive purposes.”).
See, e.g., Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 199-200
(1999) (striking down requirement that petition circulators wear identification
badges stating their names because it “compels . . . identification at the precise
moment when the circulator’s interest in anonymity is greatest”); see also Doe No. 1
v. Reed, 561 U.S. 186, 219-20 (2010) (Scalia, J., concurring in judgment)
(describing majority opinion, which upheld open records statute’s application to
referendum petitions, as acknowledging a “First Amendment right to anonymity”);
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 462 (1958) (holding that
subpoenas seeking names of NAACP members raise First Amendment concerns).
McIntyre, 514 U.S. at 347, 357 (“Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of
advocacy and of dissent. Anonymity is a shield from the tyranny of the
majority.”). But see McConnell v. FEC, 540 U.S. 93, 128 (2003) (expressing
concern regarding the misleading nature of some anonymous speech in the context
of advertisements related to federal elections), overruled on other grounds by
Citizens United v. FEC, 558 U.S. 310 (2010).
McIntyre, 514 U.S. at 347.
See Reno v. ACLU, 521 U.S. 844, 870 (1997) (affirming that First Amendment
protections apply fully to online speech); see also, e.g., Zoosk Inc. v. Doe 1, No. C
10-04545 LB, 2010 WL 5115670 (N.D. Cal. Dec. 9, 2010) (applying First
Amendment-based analysis in case involving effort to unmask anonymous user of
Twitter); Rich v. City of Jacksonville, No. 3:09-cv-454-J-34MCR, 2010 WL
4403095 (M.D. Fla. Mar. 31, 2010) (holding that prosecutor who issued criminal
subpoena to ISP for anonymous blogger’s identity was not entitled to qualified
immunity in blogger’s Section 1983 suit for violation of First Amendment right to
anonymity); cf. White v. Baker, No. 1:09-cv-00151 (N.D. Ga. Mar. 3, 2010) (court
struck down sex offender registry statute as overbroad under First Amendment
because statute chilled even protected, anonymous speech).
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The constitutional right to anonymity is not absolute and is often
balanced against other interests.8 As discussed in detail below, the
conflicting interests most commonly invoked in the context of anonymous online speech are the right of an aggrieved party to seek redress for
reputational injury or for intellectual property infringement, and the
state’s interest in prosecuting crime.9
III.
EFFORTS TO UNMASK ANONYMOUS ONLINE SPEAKERS
A. The Nature and Form of the Efforts
Civil litigants and government entities have used a variety of
procedures in seeking to unmask anonymous online speakers. Section
230 of the Communications Decency Act generally immunizes
website owners and other “interactive computer services” from
liability for the content of third-party posts, except where the claims
are, for example, for copyright or trademark infringement.10 Many of
those seeking redress for injuries allegedly caused by online speech
therefore must pursue the speakers themselves. For this reason, such
plaintiffs usually commence a lawsuit against a Jane or John Doe
defendant and then move for issuance of pre-service discovery
subpoenas.11 The plaintiff first issues a subpoena to the owner of the
8.
See, e.g., McIntyre, 514 U.S. at 353 (balancing right to anonymity and right to
protection from fraud); Best W. Int’l, Inc. v. Doe, No. CV-06-1537-PHX-DGC,
2006 WL 2091695, at *3-4 (D. Ariz. July 25, 2006) (balancing right to anonymity
and right to obtain redress for attacks on corporate reputation, trademark
infringement, disclosure of confidential information, and unfair competition).
9. See, e.g., Best W. Int’l, Inc., 2006 WL 2091695, at *3-4 (“Those who suffer damages
as a result of tortious or other actionable communications on the Internet should be
able to seek appropriate redress by preventing the wrong doers from hiding behind
an illusory shield of purported First Amendment rights” (citation and internal
quotation marks omitted)); In re Grand Jury Subpoena No. 11116275, 846 F. Supp.
2d 1, 6 (D.D.C. 2012) (government showed compelling need to identify author of
anonymous tweet to investigate whether tweet constituted a true threat against a
presidential candidate); Sony Music Entm’t Inc. v. Does 1-40 (Sony), 326 F. Supp.
2d 556, 563 (S.D.N.Y. 2004) (“Parties may not use the First Amendment to
encroach upon the intellectual property rights of others.”).
10. See 47 U.S.C. § 230(c)(1) (“Section 230 of the Communications Decency Act” or
“Section 230”). Section 230 does not provide immunity as to federal criminal law,
intellectual property law, communications privacy law, or consistent state laws.
See id. § 230(e).
11. E.g., Best W. Int’l, Inc., 2006 WL 2091695 (plaintiff filed suit against John Doe
defendants, then sought court order allowing expedited discovery as to third-party
ISPs); see also, e.g., N.J. Court Rules, 1969, R. 4:26-4 (authorizing use of
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website where the Doe defendant posted and, when necessary, then
issues one to the Doe defendant’s Internet service provider (ISP).12
Alternately, some jurisdictions allow the plaintiff to commence an
independent discovery action.13 In a copyright dispute, a plaintiff may
seek authorization from a federal district court clerk to issue a prelitigation subpoena under the Digital Millennium Copyright Act
(“DMCA”).14 In criminal matters, the speaker’s identity may be
sought through a subpoena issued by the grand jury, prosecutor or
defendant.15 Government agencies may serve subpoenas for
identifying information in administrative proceedings.16 And foreign
12.
13.
14.
15.
16.
fictitious party names). Occasionally such suits are filed against the owner of the
website on which the offending material was posted or against the anonymous
poster’s Internet Service Provider (ISP), particularly in cases where Section 230
does not apply, and the plaintiff then serves a discovery request on those parties.
E.g., Woodward v. Chetvertakov, No. 2:13-cv-11943, 2013 WL 5836219 (E.D.
Mich. Oct. 30, 2013) (plaintiff filed suit against John Doe defendant and website
on which he posted, and court allowed him serve subpoena on website’s hosting
company to obtain Doe defendant’s identifying information); Pub. Relations
Soc’y of Am. v. Road Runner High Speed Online, 799 N.Y.S.2d 847 (N.Y. Sup.
Ct. 2005) (naming ISP as defendant).
The first subpoena typically yields the name of the ISP. The second subpoena
seeks the poster’s IP address from the ISP. See infra note 21 and accompanying
text.
E.g., La Societe Metro Cash & Carry France v. Time Warner Cable, No. CV030197400S, 2003 WL 22962857, at *2-3 (Conn. Super. Ct. Dec. 2, 2003); see
also, e.g., Ill. Sup. Ct. R. 224 (authorizing independent actions for discovery “for
the sole purpose of ascertaining the identity of one who may be responsible in
damages”).
See 17 U.S.C. § 512(h) (authorizing issuance of form subpoena to “provider of
online services” for identifying information about an alleged infringer even where
there is no pending lawsuit); see also In re Subpoena Issued Pursuant to the
Digital Millennium Copyright Act to: 43SB.com, LLC, No. MS07-6236-EJL, 2007
WL 4335441 (D. Idaho Dec. 7, 2007) (pre-suit DMCA subpoena served on owner
of website hosting allegedly infringing content). DMCA subpoenas may not be
served, however, on those who have merely acted as conduits for peer-to-peer
exchanges, such as file sharing, and have not actually hosted the infringing
content. See Recording Indus. Ass’n of Am., Inc. v. Verizon Internet Servs., Inc.
(RIAA v. Verizon), 351 F.3d 1229 (D.C. Cir. 2003).
See, e.g., In re Grand Jury Subpoena No. 11116275, 846 F. Supp. 2d at 2-3 (grand
jury issued subpoena to discover author of anonymous tweet); People v. Hyde,
No. 09 CF 2305 (Ill. Cir. Ct. Lake Cnty. May 17, 2011) (defendant issued
subpoena seeking identity of anonymous poster thought to be prosecution witness).
See, e.g., Doe v. U.S. Secs. & Exchange Comm’n, No. C 11-80209 CRB, 2011
WL 5600513 (N.D. Cal. Nov. 17, 2011) (SEC issued subpoena to Google for
identifying information about email user suspected of engaging in illegal stock
scheme).
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litigants may seek the issuance of a subpoena by a federal district
court, pursuant to 28 U.S.C. § 1782, for use in proceedings outside
the United States.17
Most of the subpoenas litigated to published decisions have sought
the identity of a speaker so that a plaintiff could name him or her as a
defendant in a civil action.18 But there are a growing number of cases
in which parties have issued subpoenas seeking to unmask a nonparty
anonymous poster—an individual whose speech is not alleged to have
caused any harm but who could serve as a witness in an ongoing
lawsuit or criminal prosecution.19 In a few cases, those pursuing online
speakers whose identities are already known are issuing subpoenas to
learn other information about them, such as their locations, addresses,
and the various pseudonyms under which they are posting.20
17. See, e.g., London v. Does 1-4, 279 F. App’x 513 (9th Cir. 2008); In re ex parte
Application of Ontario Principals’ Council, No. 5:13-mc-80237, 2013 WL
6073517 (N.D. Cal. Nov. 8, 2013); In re Gianasso, No. C 12-80029, 2012 WL
651647 (N.D. Cal. Feb. 28, 2012); In re Lazaridis, 865 F. Supp. 2d 521 (D.N.J.
Sept. 1, 2011); In re Application for Appointment of a Comm’r re Request for
Judicial Assistance for the Issuance of Subpoena Pursuant to 28 U.S.C. § 1782,
No. C 11-80136 RS (MEJ), 2011 WL 2747302 (N.D. Cal. July 13, 2011).
18. Because the subpoenaing party is most commonly the plaintiff, this chapter generally speaks in those terms. Defendants sometimes wish to unmask anonymous
posters, however, to assert claims against them, to contact them as potential
witnesses, or, believing that they are the opposing plaintiffs, to defeat some aspect
of their case or harm their credibility. Similarly, this chapter generally speaks of
anonymous “posters” or “speakers” even though the anonymous person whose
identity is being sought might have been communicating in a fashion other than
posting comments online, such as by emailing or sharing music or video files.
19. E.g., State v. Brockmeyer, 751 S.E.2d 645 (S.C. 2013); Enterline v. Pocono Med.
Ctr., No. 08-cv-1934-ARC, 2008 WL 5192386, at *4, 37 Media L. Rep. (BNA)
1057 (M.D. Pa. Dec. 11, 2008); Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088,
1095 (W.D. Wash. 2001) (“2TheMart”).
20. For example, in Breslin v. Dickinson Township, No. 1:09-CV-1396, 2011 WL
1900462 (M.D. Pa. May 19, 2011), the defendants in a First Amendment
retaliation suit sought the pseudonyms used by the plaintiffs “when posting public
comments regarding the Defendants” online. The defendants hoped to
demonstrate to the court that the plaintiffs’ “First Amendment rights were in no
way chilled by the Defendants’ actions, because the Plaintiffs continued a robust
public commentary regarding the Defendants in various online public forums.”
The court ultimately dismissed the motion as moot. See also, e.g., In re
Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d), 830 F.
Supp. 2d 114 (E.D. Va. 2011) (denying motion to quash Stored Communications
Act subpoenas seeking known WikiLeaks affiliates’ physical and email addresses,
credit card numbers, online pseudonyms and details of their online activities such
as the date, time and duration of each connection to Twitter, holding that the
affiliates’ First Amendment associational rights were not violated because they
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Subpoenas typically request “all identifying information” regarding
the speaker and identify that person by the pseudonym under which he
or she posted, or by the date and time of the post. They usually seek the
IP and MAC address of the router or device from which the person
posted the comments at issue,21 and may ask for the information
obtained from the poster when he or she registered with a website,
which information may include the person’s name, email address,
physical address, and telephone number.22 Because many people
register using fake names and non-descript or “toss-away” email
addresses, the IP and MAC addresses are often the most valuable
pieces of information sought.
voluntarily publicized their connections to WikiLeaks). The authors are also
aware of cases in which subpoenas issued to Facebook sought information about
known account holders, including their physical addresses, so that the account
holders could be served with process. See, e.g., Hupp v. Freedom Commc’ns, Inc.,
No. RIC 1204151 (Cal. Sup. Ct. Orange Cnty. June 11, 2012) (order quashing
subpoena to Facebook seeking address information for purposes of serving
process on known individual defendant).
21. An Internet protocol address—or IP address—is a number assigned to an Internet
connection, typically a wireless router or local area network, at a specific date and
time. A media access control address—or MAC address—is a unique identifier
installed by the manufacturer on a specific device with an Internet connection, such
as a laptop or tablet. For a discussion on why these pieces of information may not
identify an anonymous poster, see infra notes 253-261 and accompanying text.
22. E.g., Big Ticket Television, Inc. v. Zaragosa, No. 1:13-cv-03582 (PAC) (S.D.N.Y.
July 16, 2013) (dkt. 4) (authorizing a multi-stage pre-service discovery request
seeking “documents and other electronically-stored information that may be used
to identify the individual or individuals maintaining an account with YouTube
under [certain listed] user names . . . including names, current addresses,
permanent addresses, telephone numbers, e-mail addresses, Internet Protocol
(“IP”) addresses (together with the date and time the address was assigned to the
user name), and the Media Access Control (“MAC”) addresses of their computer
hardware”); 2TheMart, 140 F. Supp. 2d at 1090 (describing subpoena as seeking,
“among other things, ‘[a]ll identifying information and documents, including, but
not limited to, computerized or computer stored records and logs, electronic mail
(E-mail), and postings on your online message boards,’ concerning a list of
twenty-three InfoSpace users, including Truthseeker, Cuemaster, and the current
J. Doe, who used the pseudonym NoGuano”).
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B. Standing of Third Parties to Assert the Rights of
Anonymous Speakers
While an anonymous poster can clearly invoke his own First
Amendment right to speak anonymously,23 whether a third-party
subpoena recipient, such as a website operator or ISP, may assert that
right on the poster’s behalf is a more complex question. The “trend
among courts . . . is to hold that entities such as newspapers, Internet
service providers, and website hosts may, under the principle of jus
tertii standing, assert the right of their readers and subscribers.”24
In Enterline v. Pocono Medical Center, a federal district court
expressly held, as a matter of first impression, that a newspaper had
standing to assert the constitutional rights of those posting
anonymously to its website.25 The court found that (1) “the anonymous
23. See In re Rule 45 Subpoena Issued to Cablevision Sys. Corp. Regarding IP
Address 69.120.35.31 (In re Rule 45 Subpoena), No. 08-MC-347 (ARR)(MDG),
2010 WL 2219343, at *7 (E.D.N.Y. Feb. 5, 2010) (Go, Mag. J.), adopted in
relevant part by No. 08-MC-347(ARR)(MDG), 2010 WL 1686811 (E.D.N.Y.
Apr. 26, 2010) (finding anonymous speaker had nonparty standing
notwithstanding FED. R. CIV. P. 45’s language permitting objections to subpoenas
by “a person commanded to produce [documents]”); Elektra Entm’t Grp., Inc. v.
Doe, No. 5:08-CV-115-FL, 2008 WL 5111885, at *7 (E.D.N.C. Sept. 26, 2008)
(finding nonparty standing where the speaker “claims a personal right in the
information sought by the subpoena”), adopted by 2008 WL 5111886 (E.D.N.C.
Dec. 4, 2008); Hadley v. Doe, 2014 IL App (2d) 130489, 12 N.E.3d 75, 382 Ill.
Dec. 75 (Ill. App. Ct. 2014) (online commenter had standing to object to request,
in pre-action petition for discovery, for order requiring Comcast to reveal his
identity). But the Ninth Circuit rejected a motion to quash on the ground that the
commenters lacked standing to challenge the subpoena where they failed to
establish they authored the two comments at issue. Does 1-4 v. U.S. Attorney
Office, 407 Fed. App’x 165 (9th Cir. 2010). And the Northern District of New
York rejected a motion to quash in a case involving both U.S. and Ecuadorian
citizens on the ground that the email account holders whose identities were sought
“submitted no evidence that they are U.S. citizens or otherwise have a strong
connection to this country” and therefore did not have standing to move to quash
the subpoena. Chevron Corp. v. Donziger, No. 1:12-MC-65 LAK/CFH, 2013 WL
3228753, at *3-4 (N.D.N.Y. June 25, 2013); see also Drummond Co. v.
Collingsworth, Nos. 13–mc–80169–JST (JCS), 13–mc–80171–JST (JCS), 2013
WL 6074157 (N.D. Cal. Nov. 18, 2013) (defendants—a lawyer and his firm—did
not have a sufficiently close relationship to third party associates to challenge
subpoenas on their behalf, and these third parties were in any event Columbian
citizens who lacked First Amendment rights).
24. McVicker v. King, 266 F.R.D. 92, 95 (W.D. Pa. 2010).
25. 2008 WL 5192386, at *3 (citing, inter alia, Virginia v. Am. Booksellers Ass’n, 484
U.S. 383, 392 (1988)); accord Digital Music News LLC v. Super. Ct., 171 Cal.
Rptr. 3d 799, 809 n.12 (Ct. App. 2014) (holding that newspaper had standing to
17
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commentators to the [newspaper] website face practical obstacles to
asserting their own First Amendment rights” because doing so would
require revelation of their identities; (2) the newspaper suffered “the
adequate injury-in-fact to satisfy Article III’s case or controversy
requirements”; and (3) the newspaper “will zealously argue and
frame the issues before the Court.”26 From this it concluded that “the
relationship between [the newspaper] and readers posting in the
[n]ewspaper’s online forums is the type of relationship that allows
[the newspaper] to assert the First Amendment rights of the
anonymous commentators.”27
Similarly, in In re Subpoena Duces Tecum to America Online,
Inc., a Virginia appellate court held that an ISP had standing to assert
the First Amendment rights of anonymous posters who were its
subscribers because, if the ISP “did not uphold the confidentiality of
its subscribers, as it has contracted to do, absent extraordinary
circumstances, one could reasonably predict that [its] subscribers
would look to [its] competitors for anonymity.”28
assert rights of person who posted to its website anonymously); United States v.
Jackson, No. 13-131, 2014 WL 585412, at *1 (E.D. La. Feb. 14, 2014) (citing,
inter alia, In re Subpoena of Drasin, Nos. ELH-13-1140, 13-cv-00304, 2013 WL
3866777 (D. Md. Jul. 24, 2013)) (same), aff’d, 2014 WL 1251069 (E.D. La.
Mar. 25, 2014), and mandamus denied, In re Times-Picayune, LLC, No. 1430298, 2014 WL 1364909 (5th Cir. Apr. 8, 2014) (per curiam) (unpublished).
26. 2008 WL 5192386, at *3; see also 2TheMart, 140 F. Supp. 2d at 1091 (court
invited non-movant website host to brief substantive issues related to rights of
anonymous posters).
27. 2008 WL 5192386, at *4.
28. 52 Va. Cir. 26, 2000 WL 1210372, at *5 (Jan. 31, 2000) (citing NAACP, 357 U.S.
at 459 and Am. Booksellers Ass’n, 484 U.S. at 392), rev’d on other grounds by
AOL, Inc. v. Anonymous Publicly Traded Co., 261 Va. 350 (2001); see also
Millennium TGA, Inc. v. Comcast Cable Commc’ns LLC, 286 F.R.D. 8, 15-16
(D.D.C. 2012) (holding Comcast had standing to move to quash subpoenas on
behalf of its subscribers). A federal district court in Colorado made the same
observation when it vacated a magistrate’s order requiring disclosure of an
anonymous poster’s identity even after the plaintiff voluntarily dismissed with
prejudice its case against the poster. The court observed that the magistrate’s
precedent “would put [the ISP] at a competitive disadvantage to other ISPs who
operate in jurisdictions with more stringent standards for disclosing the identities
of anonymous internet speakers, as well as endangering the rights of other [of the
ISP’s] users.” Faconnable USA Corp. v. Does 1-10, 799 F. Supp. 2d 1202, 1204
(D. Colo. 2011), vacating No. 11-cv-00941-CMA-BNB, 2011 WL 2015515
(D. Colo. May 24, 2011).
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Although the Enterline standing analysis has been adopted by
other courts,29 there are few opinions examining this specific issue,
and the requisite nature of the relationship between the subpoena
recipient and the anonymous speaker has not been well developed.
While some decisions appear to require that, to have standing, the
subpoena recipient risk financial loss or demonstrate a “close
relationship” with the speaker,30 others do not.31 There are, however,
cases outside the Internet context that support an argument for
standing in this context.32
29. See, e.g., In re Subpoena of Drasin, 2013 WL 3866777, at *2 n.3 (finding blog
administrator had standing to assert anonymity rights of blog commenters);
McVicker, 266 F.R.D. at 96.
30. See Quixtar Inc. v. Signature Mgmt. Team, LLC, 566 F. Supp. 2d 1205, 1215
(D. Nev. 2008) (“the inquiry into whether there is a ‘close relationship’ is
functional in nature, and it is not necessarily required that the parties know, work
or associate with one another”); In re Verizon Internet Servs., Inc., 257 F. Supp.
2d 244, 258 (D.D.C.) (finding that ISP had standing to assert the rights of its
anonymous subscribers because “a failure to do so could affect [its] ability to
maintain and broaden its client base”), rev’d on other grounds by RIAA v. Verizon,
351 F.3d 1229 (D.C. Cir. 2003); Matrixx Initiatives, Inc. v. Doe, 42 Cal. Rptr. 3d
79 (Ct. App. 2006) (holding that hedge fund that owned office from which
allegedly defamatory posting was made did not have standing to assert First
Amendment rights of anonymous poster); In re Subpoena Duces Tecum to AOL,
Inc., 52 Va. Cir. at 26, 2000 WL 1210372, at *1, discussed supra in text; see also
NAACP, 357 U.S. at 459-60 (“The reasonable likelihood that the Association
itself through diminished financial support and membership may be adversely
affected if production is compelled is a further factor pointing towards our holding
that petitioner has standing to complain of the production order on behalf of its
members.”).
31. See Kuwait & Gulf Link Transp. Co. v. Doe, 92 A.3d 41, 45 n.1 (Pa. Super. Ct.
2014) (relaxing standing rules because if speaker had to assert his or her own
rights, “he or she would lose his or her anonymity, which would create an
inhibitory effect on freedom of speech”); Mobilisa, Inc. v. Doe, 170 P.3d 712, 716
n.2 (Ariz. Ct. App. 2007) (naming ISP and anonymous speaker as defendants)
(holding that court need not address issue of ISP’s standing to assert rights of
anonymous speaker because speaker also appeared on his own behalf); AOL, Inc.
v. Nam Tai Elecs., Inc., 571 S.E.2d 128 (Va. 2002) (allowing, without discussion,
ISP to assert First Amendment rights of subscriber although subscriber did not
join ISP’s motion to quash subpoena).
32. See, e.g., Am. Booksellers Ass’n, 484 U.S. at 392-93 (bookstore had standing to
assert First Amendment rights of patrons because of potential chilling effect of
statute at issue); Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947,
956 (1984) (holding that professional fundraiser may assert First Amendment
rights of its client charities); NAACP, 357 U.S. at 458-60 (NAACP has standing to
assert First Amendment right of its members in their anonymity); Rancho Publ’ns
v. Super. Ct., 81 Cal. Rptr. 2d 274, 275 (Ct. App. 1999) (“draw[ing] upon a wellestablished body of California case law which allows nonparties to civil litigation
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Apart from the legal issue of standing, as a policy matter, some
practitioners have expressed concern that website operators and other
subpoena recipients could be risking the protections provided by
Section 230 of the Communications Decency Act when they move to
quash subpoenas by asserting the anonymous posters’ First
Amendment rights. These entities enjoy immunity under Section 230
for much third-party content posted on websites (in contrast to, for
example, letters to the editor published in a traditional physical
newspaper).33 Thus, when they advance a poster’s right to anonymity
in a motion to quash, they potentially have the power to prevent an
aggrieved party from obtaining information about the poster while
enjoying for themselves immunity from suit for the poster’s
comments—a result that would leave an allegedly injured party with
no avenue for redress.
This concern seems overwrought; every court to consider the
issue has held that the First Amendment right to anonymity is
qualified, and therefore a genuinely aggrieved party should be able to
overcome the qualified right and obtain a speaker’s identifying
information.34 Nevertheless, there are practitioners who remain
concerned that lawmakers unhappy with the rough-and-tumble of
anonymous speech on the Internet will seek to modify Section 230 to
remedy a perceived imbalance between the rights of “interactive
computer service providers,” i.e., web hosts, and those speaking
(such as a newspaper) to assert the constitutionally protected rights of an author to
remain unknown” to grant motion to quash subpoena issued by defamation
plaintiff seeking information identifying anonymous persons who purchased
advertorials in newspaper); Denari v. Super. Ct., 264 Cal. Rptr. 261, 266 (Ct.
App. 1989) (“In several different situations the courts have accorded standing to
litigants who are the recipients of discovery demands to assert the privacy rights
of third persons not present who would be affected by the litigant’s obedience to
the order.”); Bd. of Trustees v. Super. Ct., 174 Cal. Rptr. 160, 164 (Ct. App. 1981)
(“‘The custodian [of private information] has the right, in fact the duty, to resist
attempts at unauthorized disclosure and the person who is the subject of [it] is
entitled to expect that his right will be thus asserted.’” (alterations in original)
(citation omitted)); cf., e.g., NBC, Inc. v. Cooperman, 501 N.Y.S.2d 405, 406 (App.
Div. 1986) (media has standing to contest gag order on trial participants because
order “infring[es] on its constitutionally guaranteed right to gather the news”).
33. See supra note 10 and accompanying text.
34. See also Universal Commc’n Sys., Inc. v. Lycos, Inc., 478 F.3d 413 (1st Cir. 2007)
(holding that website operator’s motions to quash subpoenas seeking identifying
information about website’s users did not void operator’s Section 230 immunity).
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through them, on the one hand, and parties aggrieved by online
speech on the other.35
C. Appellate Jurisdiction
When a trial court orders disclosure of information that would
identify an anonymous speaker, the speaker, or the website that hosted
the speaker’s statements, often appeals the trial court’s decision.36
Many appellate courts rule on such appeals without addressing the
nature of their jurisdiction.37 Those that do generally hold that, while
a denial of a motion to quash a subpoena or the granting of a motion
to compel are not final, appealable orders, the court nevertheless has
jurisdiction under the collateral order doctrine given the First
Amendment-based rights at stake and the irreparable loss of those
rights absent immediate appellate review.38 This doctrine, first
35. At least one court has noted the conundrum that Section 230 immunity presents to
those disparaged on the Internet. See, e.g., Blockowicz v. Williams, No. 09-C-3955
(N.D. Ill. Dec. 21, 2009) (noting, in denying plaintiffs’ motion to enforce an
injunction as to a third-party website found not to satisfy the “legal identity” and
“active concert or participation” requirements of Rule 65 (which addresses
injunctions and restraining orders), that the plaintiffs “find themselves the subject
of defamatory attacks on the Internet yet seemingly have no recourse to have
those statements removed from public view” because the website itself is immune
under Section 230).
36. The website or speaker might also choose to seek a writ of mandamus, although
the burden on the petitioner seeking such a writ to show that the trial court order
was “clearly and indisputably erroneous” is a more exacting one. See In re TimesPicayune, LLC, 2014 WL 1364909 (unpublished) (denying mandamus relief to
newspaper subpoenaed by criminal defendant while appeal under collateral order
doctrine remains pending); In re Anonymous Online Speakers, 661 F.3d 1168,
1173-78 (9th Cir. 2011) (denying mandamus relief in context of anonymous
commercial speech and collecting cases).
37. See, e.g., RIAA v. Verizon, 351 F.3d at 1229 (DMCA subpoena); Krinsky v. Doe 6,
72 Cal. Rptr. 231 (Ct. App. 2008).
38. See, e.g., Doe No. 1 v. Burke, 91 A.3d 1031, 1036-40 (D.C. 2014) (doctrine
permitted review of denial of anonymous defendant’s motion to quash subpoena
brought pursuant to D.C. anti-SLAPP statute); Kuwait & Gulf Link Transp. Co.,
92 A.3d at 45 (doctrine permitted review of denial of anonymous defendant’s
motion to quash subpoena); Pilchesky v. Gatelli, 12 A.3d 430, 436 (Pa. Super. Ct.
2011) (doctrine permitted review of discovery order requiring defamation
plaintiff, a blog host, to disclose identities of six anonymous blog commenters to
defendant, who had counterclaimed for defamation); but see AmerisourceBergen
Corp. v. Does, 81 A.3d 921, 929 (Pa. Super. Ct. 2013) (doctrine did not apply
where appellants did not post anonymously or pseudonymously but, rather,
“utilized the name of a real person in an executive position with one of [the
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articulated by the United States Supreme Court and adopted by many
state courts since, permits appellate courts to assert jurisdiction over a
small class of otherwise non-final orders that “finally determine
claims of right separable from, and collateral to, rights asserted in the
action, too important to be denied review and too independent of the
cause itself to require that appellate consideration be deferred until
the whole case is adjudicated.”39
The Indiana Court of Appeals, however, held that it did not have
jurisdiction over an appeal from a discovery order compelling the
Indianapolis Star to disclose the identity of an anonymous newspaper
website commenter.40 The court held that, to be appealable, the trial
court would have to certify the matter for appeal under the state’s
procedural rules.41
IV.
FIRST AMENDMENT PROTECTIONS FOR ANONYMOUS
ONLINE SPEECH
A. Weighing the Online Speaker’s Right to Anonymity
Against an Aggrieved Party’s Right to Seek Redress
The U.S. Supreme Court has yet to consider the proper calculus
for weighing the conflicting rights of anonymous online speakers and
other parties who wish to unmask them, and until recently the federal
appellate courts had not entered the fray.42 In the absence of such
guidance, state courts and federal trial courts have developed a range
of standards that plaintiffs must satisfy in order to obtain information
related to an anonymous speaker’s identity.43
39.
40.
41.
42.
43.
plaintiff company’s] affiliates,” thereby removing it from First Amendment
protection afforded to “anonymous free speech”).
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).
Ind. Newspapers, Inc. v. Miller, 980 N.E.2d 852 (Ind. Ct. App. 2012), aff’d on
reh’g (Jan. 18, 2013), and transfer granted, opinion vacated, 987 N.E.2d 70,
vacated, 994 N.E.2d 731, and opinion reinstated, 994 N.E.2d 731 (Ind. 2013).
Id. at 857-61 (citing Ind. R. Trial P. 54(b)).
Before 2010, there were only two such federal appellate decisions, and they
involved subpoenas served on ISPs for information regarding the identities of
anonymous online music file sharers. Because those decisions ultimately turned
on the proper application of the DMCA, however, they did not address the
conflicting rights of the speakers and the subpoenaing parties. See In re Charter
Commcn’s, Inc., Subpoena Enforcement Matter, 393 F.3d 771 (8th Cir. 2005);
RIAA v. Verizon, 351 F.3d at 1229.
See, e.g., Krinsky, 72 Cal. Rptr. 3d at 245 (collecting and analyzing cases).
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When the anonymous poster is a civil defendant, the critical
element in each of the tests articulated by the courts is the degree of
burden imposed on the plaintiff to demonstrate the viability of his or
her case before the defendant will be unmasked. Various other
procedural and substantive requirements are often included, but the
battleground is whether the burden of demonstrating the viability of
one’s case should be high or low. By 2009, a high burden test began
to emerge for defamation and other cases involving expressive
speech—the “prima facie case” or “summary judgment” test.44
Although a number of distinct low burden tests remain—including
“motion to dismiss,” “good cause,” and “good faith” tests—these are
increasingly limited to cases in which the challenged speech is
alleged to constitute copyright or trademark infringement.45
The application of a stringent standard in cases involving
expressive speech is consistent with the Supreme Court’s recognition
of the critical role such speech has played in the history of the United
States.46 Since most courts addressing the issue have held that
allegedly infringing activities only minimally, if at all, constitute
protectable speech, the application of a decidedly lower bar in
infringement actions is not surprising.47 Moreover, as with the right
44. See, e.g., id. (reviewing previous decisions in which low burden tests were applied
and concluding that, in a defamation action, the high burden summary judgment
test best protects anonymous speech while allowing plaintiffs to seek remedies for
alleged injuries); Doe v. Cahill, 884 A.2d 451 (Del. 2005) (same).
45. See Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1, 7 n.6 (D.D.C. 2008)
(applying low burden good cause standard to copyright claim and noting that
cases involving “First Amendment-protected speech” could be legally or factually
distinguished); see also Nathaniel Gleicher, John Doe Subpoenas: Toward A
Consistent Legal Standard, 118 YALE L.J. 320, 339-43 (Nov. 2008) (summarizing
“[t]he seven major John Doe subpoena standards” and noting that decisions in
non-IP cases had increasingly imposed high burden standards irrespective of the
claim asserted). As discussed below, however, some courts have applied high
burden tests in infringement actions and low burden tests in actions involving
expressive speech.
46. See, e.g., McIntyre, 514 U.S. at 357.
47. See, e.g., XCENTRIC VENTURES, LLC v. Arden, No. C 09-80309 MISC JW
(PVT), 2010 WL 424444 (N.D. Cal. Jan. 27, 2010) (“the ‘First Amendment does
not . . . protect copyright infringement’”) (citing, inter alia, Harper & Row
Publishers, Inc. v. Nation Enters., 471 U.S. 539, 555-56 (1985)); Sony, 326 F.
Supp. 2d at 564 (finding that “the use of [peer-to-peer] file copying networks to
download, distribute, or make sound recordings available qualifies as speech
entitled to First Amendment protection” but “[t]hat protection . . . is limited”); see
also Arista Records LLC v. Does 1-19, 551 F. Supp. 2d at 8-9 (contrasting file
sharing with “actual speech”) (emphasis in original); but see Art of Living Found.,
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of anonymous speech, copyright protections are rooted in the
Constitution.48
In evaluating how to categorize the type of speech at issue, courts
generally look beyond the plaintiff’s own characterization of its
claims to the “‘nature’ of the speech conducted by the defendant.”49
Some courts have expressly focused on the gravamen of the case in
deciding which standard to apply when a variety of claims are
asserted.50 And one court squarely rejected “the notion of adopting
differing standards that depend on the manner in which a plaintiff has
framed its claim” because doing so “could encourage assertion of
non-defamation claims simply to reap the benefit of a less-stringent
standard.”51
There have been relatively few published cases in which the
anonymous poster is sought simply as a witness—that is, where the
poster is alleged to have information relevant to the case and is not
sought as a potential defendant. Whereas at least two courts
have concluded that the same test should apply regardless of the
anonymous speaker’s role in the action,52 several other courts have
adopted a test akin to the federal qualified reporter’s privilege to
48.
49.
50.
51.
52.
v. Does 1-10, No. 10-CV-05022-LHK, 2011 WL 5444622, at *9 (N.D. Cal. Nov. 9,
2011) (bucking trend of applying lower standard to allegedly infringing speech,
explaining that “copyright law contains built-in First Amendment accommodations,” and that, in that case, unveiling identity of alleged infringer would “subject
[defendant] to harm and chill others from engaging in protected speech”).
See U.S. CONST. art. I, § 8, cl. 8 (“Congress shall have Power . . . To promote the
Progress of Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and Discoveries”).
Art of Living Found., 2011 WL 5444622, at *3 (quoting In re Anonymous Online
Speakers, 661 F.3d 1168, 1173 (9th Cir. 2011)).
See, e.g., Best W. Int’l, Inc., 2006 WL 2091695, at *4 (describing speech in
question as “purely expressive” and entitled to substantial First Amendment
protection even though plaintiff asserted claims for breach of contract, breach of
fiduciary duties, trademark infringement, revealing confidential information, and
unfair competition in addition to defamation).
Mobilisa, Inc., 170 P.3d at 719.
See id. at 719 n.7 (“[T]he potential for chilling speech by unmasking the identity
of an anonymous or pseudonymous internet speaker equally exists whether that
party is a defendant or a witness. For that reason, we reject our dissenting
colleague’s view that courts should apply a different test when the identity of a
witness is at issue.”); id. at 720 (where anonymous poster is a nonparty witness
“along with a number of known witnesses with the same information,” however,
that factor “weigh[s] against disclosure” when a balancing test is performed); In re
Rule 45 Subpoena, 2010 WL 2219343 (applying, in case involving anonymous
nonparty, version of test used in case involving anonymous defendant).
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be applied in situations in which the anonymous speaker is a
nonparty (the 2TheMart test). This latter test is discussed in detail in
Section 0 below.
1.
Expressive Speech: The Prima Facie Case or Summary
Judgment Test
The prevailing view among courts called upon to consider what
test should apply in cases involving expressive content is that the
plaintiff should be required to put forth sufficient evidence to
support a prima facie case, or, put differently, to withstand a
hypothetical summary judgment motion. The seminal decisions in
this category are Dendrite International, Inc. v. Doe No. 353 and Doe
v. Cahill.54
In Dendrite, a New Jersey appellate court held, in a defamation
action, that “[t]he complaint and all information provided to the
court should be carefully reviewed to determine whether plaintiff
has set forth a prima facie cause of action.”55 Several courts have
applied this standard in cases alleging defamation and other torts.56
53. 775 A.2d 756 (N.J. Super. Ct. App. Div. 2001).
54. 884 A.2d 451 (Del. 2005).
55. 775 A.2d at 760 (“In addition to establishing that its action can withstand a motion
to dismiss for failure to state a claim upon which relief can be granted . . . , the
plaintiff must produce sufficient evidence supporting each element of its cause of
action, on a prima facie basis, prior to a court ordering the disclosure of the
identity of the unnamed defendant.”).
56. See, e.g., Mobilisa, Inc., 170 P.3d at 719-21 (trespass to chattel and violations of
federal communications laws); Ind. Newspapers, Inc. v. Miller, 963 N.E.2d 534
(Ind. Ct. App. 2012) (defamation); Donato v. Moldow, 865 A.2d 711 (N.J. Super.
Ct. App. Div. 2005) (defamation); Immunomedics, Inc. v. Doe, 775 A.2d 773 (N.J.
Super. Ct. App. Div. 2001) (breach of loyalty and contract, among other claims);
Swartz v. Doe #1, No. 08C-431 (Tenn. Cir. Ct. Davidson Cnty. Oct. 8, 2009)
(applying Dendrite test to factual findings it made after evidentiary hearing in
defamation and invasion of privacy action). A few courts have applied the
Dendrite standard to trademark infringement claims as well. See Best W. Int’l,
Inc., 2006 WL 2091695, at *4 (trademark infringement); Highfields Capital
Mgmt., L.P. v. Doe, 385 F. Supp. 2d 969 (N.D. Cal. 2005) (trademark infringement and unfair competition). Some courts have purported to adopt Dendrite-style
tests but in fact imposed lower burdens on the subpoenaing party than Dendrite
requires. In Fodor v. Doe, No. 3:10-CV-0798-RCJ (VPC), 2011 WL 1629572 (D.
Nev. Apr. 27, 2011), the court required the subpoenaing defamation plaintiff to
provide “a real evidentiary basis to believe the defendant has engaged in wrongful
conduct that has harmed the plaintiff as alleged in the complaint,” and noted that
“[i]f plaintiff satisfies this first step, the court must weigh the harm caused by the
competing interests,” id. at *4. But the court went on to find that the allegations
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In Cahill, another defamation case, the Supreme Court of Delaware
expressly adopted this element of the Dendrite test, but framed it in
terms of defeating a hypothetical motion for summary judgment:
“[B]efore a defamation plaintiff can obtain the identity of an
anonymous defendant through the compulsory discovery process he
must support his defamation claim with facts sufficient to defeat a
summary judgment motion.”57 The court made clear that the
plaintiff need not produce evidence on a particular element if that
evidence is not “within the plaintiff’s control,” such as evidence of
actual malice.58 This case, too, has been followed by several courts
in defamation and other tort actions.59
The Cahill court’s articulation of the test in summary judgment
terms has generated both confusion and criticism. Despite the
fact that the court in Cahill plainly believed this element of its test
was the same as that of Dendrite—the court spoke in the same
breath of “the prima facie or ‘summary judgment standard’”60—a
few courts have viewed Cahill as setting forth a different standard,
57.
58.
59.
60.
alone set forth the requisite “evidentiary basis” for a claim of defamation per se.
Id. Moreover, in balancing the plaintiff’s need for discovery against the First
Amendment rights involved, the magistrate judge relied on her finding that the
statements were defamatory per se: “There is no compelling public interest in
protecting anonymous speech of this character.” Id. at *5; see also Hester v. Doe,
No. 10-CVS-361 (N.C. Sup. Ct. Vance Cnty. June 28, 2010) (purporting to apply
Dendrite in a defamation action but mistakenly asserting that the standard
required only a “Rule 12(b)(6) motion to dismiss analysis”).
Cahill, 884 A.2d at 460 (discussing Dendrite).
Id. at 463-64 (holding that public figure plaintiff need not produce evidence as to
actual malice because “without discovery of the defendant’s identity, satisfying
this element may be difficult, if not impossible”); accord Best W. Int’l, Inc., 2006
WL 2091695, at *4; Mobilisa, Inc., 170 P.3d at 720; Reunion Indus. Inc. v. Doe 1,
80 Pa. D. & C.4th 449, 456 n.5 (Ct. Comm. Pl. Allegheny Cnty. 2007); In re Does
1-10, 242 S.W.3d 805, 822 (Tex. App. 2007); but see infra note 210 and
accompanying text.
See, e.g., Doe I v. Individuals, 561 F. Supp. 2d 249, 253-57 (D. Conn. 2008)
(defamation and other claims); McMann v. Doe, 460 F. Supp. 2d 259, 266-70
(D. Mass. 2006) (defamation, privacy and copyright); Best W. Int’l, Inc., 2006 WL
2091695, at *4 (defamation and other claims); Solers, Inc. v. Doe, 977 A.2d 941
(D.C. 2009) (defamation and tortious interference), aff’d after remand by Software
& Info. Indus. Ass’n v. Solers, Inc., No. 10-CV-1523 (Jan. 12, 2012) (holding that
plaintiff’s litigation costs do not constitute adequate evidence of injury to
overcome anonymity rights); Doe v. Coleman, — S.W.3d —, 2014 WL 2785840,
at *3 (Ky. Ct. App. June 20, 2014) (defamation claims); Reunion Indus., Inc., 80
Pa. D. & C.4th at 456 n.5 (commercial disparagement); In re Does 1-10, 242
S.W.3d 805 (defamation).
Cahill, 884 A.2d at 460.
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some of them describing it as less burdensome,61 and others as
more burdensome,62 than Dendrite. In Krinsky, a California
appellate court concluded it is “unnecessary and potentially
confusing to attach a procedural label, whether summary judgment
or motion to dismiss, to the showing required.”63 Hinging the
standard to a procedural device is fraught with difficulty, the court
concluded, given that “subpoenas in Internet libel cases may relate
to actions filed in other jurisdictions, which may have different
standards governing pleading and motions.”64
Perhaps as a result, the groundswell began to move away from
the summary judgment formulation of Cahill and in the direction
of the prima facie test announced by the Dendrite court. A
California appellate court adopted the Dendrite test in Krinsky in
2008.65 Maryland’s high court settled on the prima facie case
61. See Krinsky, 72 Cal. Rptr. 3d at 242-43 (describing the Cahill standard as more
stringent than a motion to dismiss test, but less stringent than a prima facie case
test).
62. See Indep. Newspapers, Inc. v. Brodie, 966 A.2d 432, 456-57 (Md. 2009)
(inaccurately describing the Cahill test as requiring plaintiffs to provide enough
evidence to affirmatively establish their entitlement to summary judgment, and
observing that such a test “[s]et[s] the bar too high” by “undermin[ing] personal
accountability and the search for truth, by requiring claimants to essentially prove
their case before even knowing who the commentator was”).
63. 72 Cal. Rptr. 3d at 243-44.
64. Id. Indeed, courts in Michigan and Illinois have rejected the Dendrite and Cahill
standards’ “prima facie case” and “summary judgment” requirements altogether
on the ground that their states’ procedures provide adequate protection to
anonymous speakers. See Thomas M. Cooley Law School v. Doe 1, 833 N.W.2d
331, 342 (Mich. Ct. App. 2013) (finding Dendrite standard unnecessary because
Michigan’s procedures for summary disposition of cases—which are akin to a
federal Rule 12(b)(6) motion—and the entry of protective orders “adequately
protect a defendant’s First Amendment interests in anonymity”); Ghanam v. Does,
845 N.W.2d 128 (Mich. Ct. App. 2014) (same); Maxon v. Ottawa Publ’g, 929
N.E.2d 666, 675-76 (Ill. App. Ct. 2010) (rejecting trial court’s application of
Dendrite/Cahill standard and holding that Illinois Supreme Court Rule 224, which
authorizes independent actions for the discovery of the “identity of one who may
be responsible in damages,” coupled with the motion to dismiss standard, provides
the same level of protection because Illinois is a fact pleading state); Stone v.
Paddock Publ’ns, Inc., 961 N.E.2d 380 (Ill. App. Ct. 2011) (same); accord
Brompton Building LLC v. Yelp!, Inc., 41 Med. L. Rep. (BNA) 1476 (Ill. App. Ct.
Jan. 31, 2013) (affirming dismissal of petition for pre-suit discovery under this
standard because alleged defamation was nonactionable opinion and not “of and
concerning” the plaintiff); see also infra note 109 (New York courts apply state
procedural statute).
65. 72 Cal. Rptr. 3d at 245-46.
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standard in an exhaustive opinion issued in 2009 in Independent
Newspapers, Inc. v. Brodie.66 And several other courts have adopted
the Dendrite-style formulation since.67 At bottom, however, the
prima facie and summary judgment tests impose similar burdens in
terms of the strength of the case the plaintiff must present to the
court,68 essentially requiring sufficient evidence to create a jury
issue on the underlying claim, and both tests are very protective of
anonymous speech.69
66. 966 A.2d at 456-57. But see Solers, Inc., 977 A.2d at 953-58 (the District of
Columbia’s highest court adopted the Cahill standard that same year).
67. See Mount Hope Church v. Bash Back!, No. C11-536RAJ (W.D. Wash. Apr. 21,
2011) (adopting elements of Dendrite and quashing subpoena in action alleging
common law trespass and violation of the federal Freedom of Access to Clinic
Entrances Act, 18 U.S.C. § 248); SaleHoo Grp., Ltd. v. ABC Co., 722 F. Supp. 2d
1210, 1214-17 (W.D. Wash. 2010) (adopting elements of Dendrite and quashing
subpoena issued in action alleging defamation, trademark infringement, false
designation of origin and unfair competition); USA Techs., Inc. v. Doe, 713 F.
Supp. 2d 901 (N.D. Cal. 2010) (adopting “streamlined version of the Dendrite
test” to quash subpoena in action for securities fraud and defamation); Zherka v.
Bogdanos, No. 08 CV 2062 (S.D.N.Y. Feb. 24, 2009) (partial transcript available
at http://www.citmedialaw.org/legal-guide/legal-protections-anonymous-speechnew-york (follow “Zherka v. Bogdanos” hyperlink)) (invoking Dendrite from
bench in quashing subpoena in defamation action); Mortg. Specialists, Inc. v.
Implode-Explode Heavy Indus., Inc., 999 A.2d 184, 194 (N.H. 2010) (adopting
Dendrite in defamation action); see also Koch Indus., Inc. v. Does 1-25, No.
2:10CV1275DAK, 2011 WL 1775765 (D. Utah May 9, 2011) (noting in dicta that
“the case law has begun to coalesce around the basic framework of the test
articulated in Dendrite”); Juzwiak v. Doe, 2 A.3d 428, 432-33 (N.J. App. Div.
Aug. 3, 2010) (rejecting argument that Dendrite did not apply on the ground that
the speech at issue constituted threats beyond the protection of the First
Amendment); see also supra note 56. Ironically, the Dendrite court itself has
since issued two decisions distinguishing Dendrite. See Warren Hosp. v. Does 110, 63 A.3d 246, 250 (N.J. Sup. Ct. App. Div. 2013) (declining to apply “strict or
overly-formulaic application of the Dendrite test” and holding that plaintiffs were
entitled to pursue discovery because they “demonstrated (1) the [Doe] speakers’
unlawful or impermissible mode of communication,” i.e., hacking into an email
system and sending unquestionably defamatory emails, “and (2) that the allegedly
defamatory statements would survive a motion to dismiss”); Too Much Media,
LLC v. Hale, 993 A.2d 845, 861-62 (N.J. Super. Ct. App. Div. 2010) (asserting, in
dicta, that the Dendrite standard is limited to “evaluating applications for
discovery of the identity of anonymous users of Internet Service Provider (ISP)
message boards” and has “never been extended beyond ISPs”).
68. See, e.g., Sinclair v. TubeSockTedD, 596 F. Supp. 2d 128, 132 (D.D.C. 2009)
(equating this aspect of the Dendrite and Cahill tests).
69. Indeed, some courts have simply combined the two tests. For example, a court in
Pennsylvania crafted a test borrowing from both Dendrite and Cahill. See
Pilchesky, 12 A.3d at 442-46 (requiring subpoenaing defamation plaintiff to
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The Dendrite court and some others have held that, even if the
plaintiff satisfies this burden, the judge should still balance the First
Amendment rights of the anonymous poster against the strength of
the plaintiff’s case and the necessity of the disclosure.70 The Cahill
court and others have deemed this additional step unnecessary,
concluding that either the substantive law of defamation, or the
summary judgment standard itself, already achieves this balancing
of the competing rights of the anonymous poster and the plaintiff.71
However, at least one court, in Mobilisa, Inc. v. Doe, expressly
criticized Cahill’s elimination of this element, asserting that such
balancing “is necessary to achieve appropriate rulings in the vast
array of factually distinct cases likely to involve anonymous
speech.”72 There, the Arizona Court of Appeals noted that
“surviving a summary judgment on elements not dependent on the
anonymous party’s identity does not necessarily account for factors
weighing against disclosure,” such as where the anonymous poster
is a nonparty witness with the same information that is in the control
of other witnesses.73 The court also concluded that, without the
balancing step, a court “would not be able to consider factors such
as the type of speech involved, the speaker’s expectation of privacy,
the potential consequence of a discovery order to the speaker and
others similarly situated, the need for the identity of the speaker to
advance the requesting party’s position, and the availability of
alternative discovery methods.”74 As discussed below, however,
70.
71.
72.
73.
74.
provide notice to anonymous poster, evidence sufficient to survive summary
judgment motion, and affidavit of good faith, and incorporating Dendrite’s
balancing requirement); reaffirmed in Kuwait & Gulf Link Transp. Co., 92 A.3d at
49-50.
See Dendrite, 775 A.2d at 760-61; accord, e.g., Highfields Capital Mgmt., 385 F.
Supp. 2d at 976 (balancing the “magnitude of the harms that would be caused to
the competing interests by a ruling in favor of plaintiff and by a ruling in favor of
defendant”).
See, e.g., Cahill, 884 A.2d at 457 (finding a balancing test unnecessary because
the “summary judgment test is itself the balance”); Krinsky, 72 Cal. Rptr. 3d at
245-46 (rejecting balancing step because, where plaintiff’s proffer demonstrates
“there is a factual and legal basis for believing libel may have occurred, the
writer’s message will not be protected by the First Amendment”).
170 P.3d at 720.
Id.
Id. At least one court has expressly considered some of these factors in the
balancing step. A Tennessee court looked to Branzburg v. Hayes, 408 U.S. 665,
710 (1972) (Powell, J., concurring), as well as the Tennessee Shield Law, TENN.
CODE ANN. § 24-1-208(c)(2), in seeking guidance on how to perform the balance.
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other courts account for some of these factors by including them as
additional elements of their analysis.
As of 2010, it appeared that the Dendrite/Cahill standard, with
or without the additional balancing test, had taken root as the test
to be applied to all types of expressive speech. However, since
then, decisions issued by the Ninth Circuit have muddied the
waters, setting the stage for courts to develop different tests for
different kinds of expressive speech.
In In re Anonymous Online Speakers, a plaintiff corporation
asserted tortious interference and other business tort claims against a
competitor for an alleged “smear campaign” and sought the
identities of certain anonymous online critics.75 The critics’
statements included comments such as: “Quixtar has regularly, but
secretly, acknowledged that its products are overpriced and not
sellable”; “Quixtar refused to pay bonuses to IBOs [independent
business owners] in good standing”; “[Quixtar] terminated IBOs
without due process”; “Quixtar currently suffers from systemic
dishonesty”; and “Quixtar is aware of, approves, promotes, and
facilitates the systematic noncompliance with the FTC’s Amway
rules.”76
In apparent reliance on the plaintiff’s allegation that these
statements were made by employees of the defendant, the court
initially concluded that the “Internet postings and video at issue in
the petition and cross-petition are best described as types of
‘expression related solely to the economic interests of the speaker
and its audience,’” and thus “properly categorized as commercial
speech.”77 With this starting point, the court reasoned that “the
nature of the speech should be a driving force in choosing a
standard by which to balance the rights of anonymous speakers in
See Swartz v. Doe #1, No. 08C-431. The court concluded that the “relevant factors
include: the specificity, relevance, and materiality of the discovery request; the
absence of alternative means to obtain the requested information; and the extent
and reasonableness of the speaker’s privacy expectations.” Id.
75. 661 F.3d 1168 (9th Cir. 2011), appealed from Quixtar Inc. v. Signature Mgmt.
TEAM, LLC, 3:07-CV-505-ECR-RAM (D. Nev. Apr. 7, 2009) (dkt. 409). This
opinion supersedes the original, which had been published at In re Anonymous
Online Speakers, 611 F.3d 653 (9th Cir. 2010).
76. In re Anonymous Online Speakers, 661 F.3d at 1172.
77. In re Anonymous Online Speakers, 611 F.3d at 657 (citing Cent. Hudson Gas &
Elec. Corp. v. Pub. Serv. Comm’n, 447 U.S. 557, 561 (1980)) (original, vacated
opinion).
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discovery disputes,”78 and concluded that the district court erred in
applying the Cahill summary judgment standard: “Because Cahill
involved political speech, that court’s imposition of a heightened
standard is understandable. In the context of commercial speech
balanced against a discretionary discovery order under Rule 26,
however, Cahill’s bar extends too far.”79 Because the district court
ordered disclosure even under the exacting standard of Cahill,
however, the court did not articulate what lower standard should
apply in such cases.80
The court’s initial determination that the speech at issue in that
case—criticism of a company’s business practices—was “commercial speech” drew heavy criticism, and the court withdrew its original
opinion and issued a new one that reached the same result (affirming
the trial court’s order to unmask three speakers) without determining
whether their speech constituted “commercial speech.”81 But a 2011
78. In re Anonymous Online Speakers, 661 F.3d at 1177 (citing, inter alia, Doe No. 1
v. Reed, 130 S. Ct. at 2817-18 [561 U.S. at 193-97]); see also id. at 1173 (“The
right to speak, whether anonymously or otherwise, is not unlimited, . . . and the
degree of scrutiny varies depending on the circumstances and the type of speech at
issue.”).
79. Id. at 1176-77.
80. Id. at 1177. The court relied on two other federal circuit court cases, each of which
considered anonymity rights in the context of offline speech that was found to be
commercial in nature. In Lefkoe v. Jos. A. Bank Clothiers, Inc., 577 F.3d 240 (4th
Cir. 2009), the Fourth Circuit allowed the disclosure of the identity of a
shareholder who requested that his anonymous complaints about the company be
forwarded by the company to its auditors. In NLRB v. Midland Daily News, 151
F.3d 472 (6th Cir.1998), the Sixth Circuit quashed a subpoena for the identity of a
newspaper advertiser. In both cases, the courts evaluated whether the plaintiff had
demonstrated that a “substantial state interest” in disclosure outweighed the
anonymity rights at stake.
81. Compare 611 F.3d 653 (initial, vacated opinion), with 661 F.3d 1168 (reissued
opinion). See also, e.g., In re Rule 45 Subpoena, 2010 WL 2219343, at *8-9
(rejecting argument that speech analogous to that at issue in In re Anonymous
Online Speakers was “commercial speech” deserving of less protection under the
First Amendment, because “[t]he ‘core notion’ of commercial speech is that
‘which does no more than propose a commercial transaction’” and “[n]one of
Doe’s comments . . . amount to an attempt to propose a commercial transaction or
constitute some sort of advertising” (quoting Anderson v. Treadwell, 294 F.3d
453, 460 (2d Cir. 2002) (citation omitted))). But see In re Subpoena of Drasin,
2013 WL 3866777, at *5 (concluding, without analysis, that “offensive
comments” directed at a business—including comment that the business was a
“scam scam scam” and its employees were “toilet slime bags” and “frauds”—
were “of a commercial nature” thus the posters had a “limited First Amendment
right to anonymity”).
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decision by the Ninth Circuit confirmed the court’s determination to
apply a lesser-burden test to speech about commercial products and
services—speech that it again characterized as “commercial
speech”—at least where made by a competitor’s employee and
“intended to promote other, competing products.”82
In SI03, Inc. v. Bodybuilding.com, LLC, the Ninth Circuit
reiterated its view that the “degree of scrutiny we give to
impositions on speech ‘varies depending on the circumstances and
type of speech at issue’” and that, “in cases involving lessprotected categories of speech, such as commercial speech, we
apply a less-protective standard for disclosure.”83 Acknowledging
that the “substance” of comments by anonymous speakers on the
defendant’s website about the plaintiffs’ products “alone d[id] not
suggest that the speech [was] ‘commercial’ in nature,” the court
concluded that if the commenters “work for [plaintiffs’]
competitors, there is good reason to suspect that their harsh
criticisms were intended to promote other, competing products,”
an intention that would render those criticisms “commercial
speech” worthy of less protection than other kinds of critical
commentary.84 The court vacated the trial court’s decision denying
the plaintiffs’ motion to compel the identities of the commenters
and remanded the case to the district court so that it could take
steps to ascertain “whether the anonymous speakers were acting as
agents of [the plaintiffs’] competitors,” and, if so, to determine
what standard to apply to the plaintiffs’ motion to compel.85
Although the court left to the district court the determination of
what those steps entail, it specifically observed that, “[d]uring this
process, the court may find it necessary to allow some disclosure”
to the plaintiffs’ attorneys “in order to resolve the underlying issue
of the speakers’ relationship to [the plaintiff] and the corresponding nature of their speech.”86
On remand, however, the trial court adopted the parties’ joint
proposal to allow defendants to obtain declarations from the
anonymous speakers regarding their ties, if any, to the plaintiffs’
82. SI03, Inc. v. Bodybuilding.com, LLC, 441 F. App’x 431, 432 (9th Cir. 2001)
(nonprecedential) (vacating SI03, Inc. v. Bodybuilding.com, LLC, 07-mc-06311EJL-LMB (D. Idaho Mar. 23, 2010) (dkt. 68)).
83. Id. at 431-32.
84. Id.
85. Id.
86. Id. at *2 n.1.
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competitors.87 The court found that the speech was not
“commercial” because the three posters who could be located
declared they did not work in plaintiffs’ industry at the time they
made their comments, and the posts of the fourth commenter
showed that they were not made for commercial purposes.88
The court did find, however, without explanation, that the
speech was “deserving of greater protection than the limited
measure afforded to commercial speech but less protection than the
highest level of scrutiny that is reserved for core First Amendment
speech, such as religious or political speech.”89 It adopted a lower
burden, motion to dismiss-style test for cases where the anonymous
speech is not true “commercial speech” but is criticism by noncompetitors about products and services: “The [plaintiff] must
show, to the extent necessary to overcome a motion to dismiss based
on the pleadings, that it can allege facts supporting a cause of action
and that the requested discovery is necessary to sustain its case.”90
In assessing the need for the discovery, the court held that it should
consider a variety of the other factors discussed in Section IV.A.2
below, as well, and rejected the plaintiffs’ requests for the
anonymous speakers’ identities because they had not set forth a
prima facie case for defamation.91
The Ninth Circuit’s suggestion that “some disclosure” of the
speaker’s identity might be appropriate on a motion to quash, to
the court and possibly even to the subpoenaing party’s attorney,
may chill anonymous speech if adopted widely or without
consideration of less drastic measures.92 And it is clear that other
87. SI03, Inc. v. Bodybuilding.com, LLC, No. 07-mc-06311-EJL-LMB (D. Idaho
Apr. 11, 2013) (dkt. 90).
88. Id.
89. Id. at 7.
90. Id. (citing Sony, 326 F. Supp. 2d 556, discussed in Section IV.A.2.a below); see
also Taylor v. Does 1-10, 4:13-CV-218-F, 2014 WL 1870733 (E.D.N.C. May 8,
2014) (adopting lower-burden motion to dismiss standard in case involving
disparaging comments about a business allegedly made by a competitor).
91. Id. (court should consider “(1) plaintiff’s ability to establish a prima facie claim,
(2) the specificity of plaintiff’s discovery request, (3) the availability of alternative
means to obtain the subpoenaed information, (4) the central need for discovery to
advance plaintiff’s claim, and (5) defendants’ expectation of privacy” (citing
Cornelius v. Deluca, No. 1:10-CV-027-BLW, 2011 WL 977054, at *4 (D. Idaho
Mar. 15, 2011 (in turn citing Sony, 326 F. Supp. 2d 556)))).
92. Other courts have also requested or required disclosure of the anonymous
speaker’s identity to the court. See, e.g., Donziger, 2013 WL 3228753 (where
movant email account holders signed declarations in support of a motion to quash
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approaches short of limited disclosure can often provide the court
and parties the information necessary to properly adjudicate the
dispute. One example is a District of Idaho decision, Cornelius v.
Deluca, that involved the same parties and the same anonymous
speaker as SI03 and that was rendered three months before the
Ninth Circuit’s decision in SI03. The subpoenaing plaintiff
contended that the speaker was an agent of the defendantcompetitor, and the defendant-competitor submitted an affidavit
swearing that the speaker was not. The court declined to unmask
the anonymous speaker when the plaintiff failed to proffer any
evidence in support of its allegation.93
The Cornelius decision is also noteworthy in that it provided a
rationale—missing in the SI03 court’s decision on remand—for
imposing an intermediate level of scrutiny for speech about products
and services that is not the kind of true “commercial speech”
articulated by the U.S. Supreme Court—i.e., speech that is merely
an advertisement for a competing produce or service. The district
court held that the anonymous speech at issue—criticism of a
company’s products and services by non-competitors—was
“deserving of more protection than commercial speech but less than
speech that lies at the heart of First Amendment values, such as
religious or political speech” because, even though it was not “core
commercial speech,” it was neither “‘core’ political or religious
speech, ‘for which First Amendment protection is at its zenith.’”94
a subpoena seeking their identifying information, court required movants to resign the declarations with their actual names and submit them to the court in
camera); Hamburg Cent. Sch. Dist. v. Stephenson, No. 2012-2141 (N.Y. Sup. Ct.
Erie Cnty. July 16, 2013) (anonymous blogger who had moved to quash subpoena
declined court’s request that blogger reveal his identity to court in camera);
AmerisourceBergen Corp., 81 A.3d 921 (court required ISP to disclose identifying
information to it in camera before complaint was filed and before issuing order to
show cause why information should not be revealed to plaintiffs).
93. 2011 WL 977054, at *6, amending 2010 WL 4923030 (D. Idaho Nov. 29, 2010).
94. Id. at *4 (quoting Meyer v. Grant, 486 U.S. 414, 414 (1988)). Rather than
articulate what standard should apply in such cases, however, as did the court in
SI03, the court simply rejected the subpoenaing plaintiff’s request on the ground
that it had not demonstrated a “compelling need” for the anonymous speaker’s
identity—a requirement that, as discussed in Section IV.C.1 below, has been
adopted by other courts where the speaker is sought not as a defendant, but merely
as a witness. Id.
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The Ninth Circuit’s decisions in Anonymous Online Speakers
and SI03 promise that new tests will arise for speech about
commercial matters, at least in some jurisdictions.95
2.
Infringing Speech
Where the speech at issue is challenged on grounds that it
infringes intellectual property rights or otherwise constitutes a
business tort, many courts have applied—or at least nominally
applied—either a motion to dismiss standard or a good cause
standard.96 In cases involving alleged infringement of pornography,
some courts have focused on a privacy rationale for maintaining the
anonymity of the alleged infringer.
a.
The Motion to Dismiss Test
In the 1999 decision of Columbia Insurance Co. v.
Seescandy.com (Seescandy), a federal district court in California
held that discovery of an anonymous defendant’s identity in an
action for trademark infringement and other business torts would
be allowed when the plaintiff “establish[ed] to the Court’s
satisfaction that plaintiff’s suit against [the speaker] could
withstand a motion to dismiss.”97
Despite the court’s reference to the Rule 12(b)(6) standard,
the decision in fact set a higher bar. The court explained that a
plaintiff should not be permitted to rest on a well-pleaded
complaint but rather must make “some showing that an act
giving rise to civil liability actually occurred and that the
discovery is aimed at revealing specific identifying features of
95. A Pennsylvania appellate court declined to impose a lesser standard in a
defamation case in which a government contractor contended an anonymous
speaker critical of the company was the employee of a competing government
contractor. The court held that the particular speech at issue there was political
speech, and thus it deserved the highest constitutional protection even if there was
evidence of economic motivation. Kuwait & Gulf Link Transp. Co., 92 A.3d at 49.
The decision may be read, however, to imply that a different standard applies in
cases where the anonymous speech is “commercially motivated.” See id.
96. For a discussion of mass copyright infringement suits and the special procedural
issues adjudicated therein, see Section V.C below.
97. 185 F.R.D. 573, 578-80 (N.D. Cal. 1999).
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the person or entity who committed that act.”98 Indeed, the
court likened the standard “to the process used during criminal
investigations to obtain warrants,” i.e., a probable cause
standard, and it examined evidence in the record before
concluding that the plaintiff had made the requisite showing.99
Other courts have similarly purported to apply a motion
to dismiss-type test while actually requiring something more
than just stating a viable cause of action. For example, the
Supreme Court of Wisconsin adopted a motion to dismiss
standard in a defamation case, but observed that such a
standard would provide more protection in Wisconsin than it
would in other jurisdictions because Wisconsin law requires
all defamation plaintiffs to plead their claims with
particularity.100
98.
Id. at 580; accord Rocker Mgmt., LLC v. Does 1-20, No. 03-MC-33-CRB, 2003
WL 22149380, at *1 (N.D. Cal. May 29, 2003); see also Krinsky, 72 Cal. Rptr.
3d at 245 (noting that “[e]ven the decisions imposing a motion-to-dismiss
obligation nonetheless require some showing that the tort took place” (citations
and internal quotation marks omitted)).
99. Seescandy, 185 F.R.D. at 579-80. Several other federal courts in California have
permitted the unmasking of anonymous speakers in a variety of business tort
actions after applying the standard announced in Seescandy. See, e.g.,
Huntington Ingalls Inc. v. Doe, No. C 12-05506 DMR, 2012 WL 5897483 (N.D.
Cal. Nov. 21, 2012) (defense contractor sought identity of holder of email
address to which it had mistakenly sent proprietary information); Specialized
Bicycle Components, Inc. v. Barton, No. C10-05725 HRL, 2011 WL 31268
(N.D. Cal. Jan. 5, 2011) (plaintiff sued anonymous eBay user who had allegedly
sold counterfeit bicycle parts); Liberty Media Holdings, LLC v. Does 1-59, No.
10-1823-DMS (WVG), 2010 WL 4568714 (S.D. Cal. Nov. 3, 2010) (plaintiffs
sued anonymous individuals who allegedly improperly accessed servers and
distributed copyrighted adult videos from plaintiff’s website). The Northern
District of California has applied (at least nominally) the Seescandy test in
defamation cases as well. See Readify, Pty Ltd. v. Readifyblog, No. CV 12-05357
KAW, 2012 WL 6737809 (N.D. Cal. Dec. 28, 2012) (granting ex parte motion
to discover identity of blogger accused of defaming plaintiff company, citing
Seescandy and holding—contrary to Seescandy itself—that plaintiff had satisfied
the test merely by pleading the essential elements of the claim); Zoosk Inc., 2010
WL 5115670 (ordering ISPs to reveal identifying information about authors of
allegedly defamatory tweets because plaintiff had sufficiently alleged a
defamation claim, had diligently sought and obtained IP addresses for the
tweeters, and had contacted them directly via email).
100. Lassa v. Rongstad, 718 N.W.2d 673, 687 (Wis. 2006) (noting that Cahill, which
applied a summary judgment test, was decided in a notice pleading state); see
also supra notes 63-64 and accompanying text. In the wake of the Supreme
Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and
Ashcroft v. Iqbal, 556 U.S. 662 (2007), which “retired” Conley v. Gibson and
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What later emerged as the prevailing “low burden”
standard was articulated by the Southern District of New York
in Sony Music Entertainment Inc. v. Does 1-40, a copyright
infringement action involving the alleged downloading and
distribution of music via peer-to-peer file copying networks.101
The Sony court set forth a motion to dismiss test that is slightly
less speech-protective than that announced in Seescandy.
In Sony, the court examined several factors it said other
courts had considered—and should consider—when evaluating subpoenas seeking identifying information regarding
subscribers, including whether the plaintiff made “a concrete
showing of a prima facie claim of actionable harm.”102
Although the court’s reference to a “showing of a prima facie
claim” makes the Sony test appear at first blush to be more
speech-protective than the Seescandy test (especially given
the Dendrite court’s use of this same phrase), it is not. The
court held that a plaintiff could satisfy this requirement by
alleging the elements of ownership and copying in some
detail in the complaint, a lower burden it justified by noting
that, “[i]n contrast to many cases involving First Amendment
rights on the Internet, a person who engages in P2P file
sharing is not engaging in true expression.”103 Although one
of the factors to be considered is the subscriber’s privacy
interest, the court held that in the online infringement context
such an interest was “minimal” because of terms prohibiting
infringing activities in ISPs’ contracts.104
101.
102.
103.
104.
held that “[f]actual allegations must be enough to raise a right to relief above the
speculative level,” Twombly, 550 U.S. at 545-47, a motion to dismiss standard
might provide at least some degree of greater protection in a federal case than it
would in a case in a notice pleading state. Indeed, while not deciding what
standard should apply in all such cases, one federal court opined that
“satisfaction of the federal pleading standard should be sufficient to warrant
disclosure of the identity of anonymous comment[ers],” even in a case involving
expressive speech, given that the standard “has been raised by Twombly and
Iqbal.” Directory Assistants, Inc. v. Does 1-10, No. MC 11-00096-PHX-FJM,
2011 WL 5335562, at *2 (D. Ariz. Nov. 4, 2011).
326 F. Supp. 2d 556 (S.D.N.Y. 2004).
Id. at 564-66.
Id. at 564-65.
Id. at 566. See also, e.g., Hard Drive Prods., Inc. v. Does 1-1,495, No. 1:11-cv01741 (D.D.C. Dec. 21, 2011) (Facciola, Mag. J.) (dkt. 18) (“[i]ndividuals who
subscribe to the internet through ISPs simply have no expectation of privacy in
their subscriber information”).
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The Second Circuit adopted and applied the Sony test in
Arista Records, LLC v. Doe 3, another peer-to-peer file sharing
copyright action. The court concluded that the “concrete
showing” element was satisfied there when the plaintiff
provided “factual detail in the Complaint [which] plainly states
copyright infringement claims that are plausible” together with
a declaration and exhibit.105 The court expressly noted,
however, that there remained an open question as to whether a
well pleaded complaint, unaccompanied by any evidentiary
showing, would be sufficient.106
The Sony test has been applied often in other copyright
infringement actions involving peer-to-peer file sharing, cases
in which the Doe defendants’ conduct has been found to
involve “some creative aspects of downloading” copyrighted
content or of making it available to others.107 But courts have
applied the test in cases involving other kinds of claims as well,
including cases involving expressive speech. The Northern
District of California applied Sony in what appears to have
been a garden-variety infringement case.108 Several New York
courts, applying a state procedure for obtaining pre-action
discovery, applied motion to dismiss-type analyses in
defamation actions, and two invoked Sony expressly.109 In
105. 604 F.3d 110, 122 (2d Cir. 2010).
106. See id. at 123. Interestingly, one court found that the “concrete showing”
standard had been satisfied where the plaintiff obtained a default judgment
against a copyright infringer. See XCENTRIC VENTURES, LLC, 2010 WL
424444, at *2.
107. London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153, 163 (D. Mass. 2008)
(stating further that these aspects were “the value judgment of what is worthy of
being copied; the association of one recording with another by placing them
together in the same library; the self-expressive act of identification with a
particular recording; the affirmation of joining others listening to the same
recording or expressing the same idea”); see also, e.g., UMG Recordings, Inc. v.
Does 1-4, No. 06-0652 SBA (EMC), 2006 WL 1343597, at *2 (N.D. Cal.
Apr. 19, 2006) (finding that a “person who uses the Internet to download or
distribute copyrighted music without permission is engaging in the exercise of
speech, but only to a limited extent, and the First Amendment does not protect
the person’s identity from disclosure”).
108. See XCENTRIC VENTURES, LLC, 2010 WL 424444, at *2-4.
109. See Cohen v. Google, Inc., 887 N.Y.S.2d 424 (N.Y. Sup. Ct. N.Y. Cnty. 2009)
(holding that the law generally applicable to an application for pre-action
disclosure, N.Y. CPLR 3102(c), together with the legal requirements for
establishing a meritorious cause of action for defamation, applied); accord
Nanoviricides, Inc. v. Seeking Alpha, Inc., No. 151908/2014, 2014 WL 2930753
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General Board of Global Ministries of the United Methodist
Church v. Cablevision Lightpath, Inc., a federal district court
applied the Sony test in an action brought under the Stored
Communications Act, and granted a corporate plaintiff’s
motion seeking from an ISP the identity of an individual who
allegedly hacked into the email accounts of seven of the
company’s employees and sent a message from one account.110
Most recently, the District of Idaho adopted the Sony test in a
defamation case involving criticism by non-competitors about
products and services.111
b.
The Good Cause Test
In some cases alleging copyright infringement arising from
the use of peer-to-peer file sharing, courts have employed a
“good cause” test, the weakest standard thus far applied to
efforts to unmask an anonymous online speaker.112 Under this
test, an anonymous individual may be identified where there
are “allegations of copyright infringement,” there is a “danger
that the ISP will not preserve the information sought,” the
information sought is narrow in scope, and expedited discovery
(N.Y. Sup. Ct. N.Y. Cnty. June 26, 2014) (no pre-action discovery where
petitioner failed to make a “strong showing” that he “has a meritorious cause of
action and that the information sought is material and necessary to the actionable
wrong” (citing N.Y. CPLR 3102(c)); Sandals Resorts Int’l Ltd. v. Google, Inc.,
910 N.Y.S.2d 408 (N.Y. Sup. Ct. 2010) (same), aff’d, 925 N.Y.S.2d 407 (N.Y.
App. Div. 2011); Konig v. CSC Holdings, LLC, 112 A.D.3d 934 (N.Y. App. Div.
2013) (pre-action discovery into identity of anonymous speaker was precluded in
case where statements were non-defamatory opinion), leave to appeal dismissed
by — N.E. 3d —, 2014 WL 2936237 (N.Y. July 1, 2014); Konig v.
WordPress.com, 112 A.D.3d 936 (N.Y. App. Div. 2013) (same); Von
Kuersteiner v. Schrader, No. 100089/2008 (N.Y. Sup. Ct. N.Y. Cnty. Oct. 17,
2008) (invoking Sony in defamation action); Pub. Relations Soc’y of Am., 799
N.Y.S.2d 847 (same); but see Greenbaum v. Google, Inc., 845 N.Y.S.2d 695,
698-99 (N.Y. Sup. Ct. N.Y. Cnty. 2007) (finding higher Dendrite standard to be
“persuasive authority” in pre-action proceeding for discovery, but concluding
that it “need not reach the issue of the quantum of proof that should be required
on the merits because, here, the statements on which petitioner seeks to base her
defamation claim are plainly inactionable as a matter of law”).
110. No. CV-06-3669 (DRH) (ETB), 2006 WL 3479332 (E.D.N.Y. Nov. 30, 2006).
111. SI03, Inc., No. 07-6311-EJL, at 7 (discussed in Section IV.A.1 above).
112. See Arista Records LLC v. Does 1-19, 551 F. Supp. 2d at 6-7; Arista Records,
LLC v. Does 1-9, No. 2:07-cv-961, 2008 WL 2982265, at *5 (S.D. Ohio July 29,
2008); Capitol Records, Inc. v. Doe, No. 07-cv-1570-JM (POR), 2007 WL
2429830, at *1 (S.D. Cal. Aug. 24, 2007).
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“would substantially contribute to moving the case forward.”113
This test provides no special protection; it is essentially the
same test employed by federal courts for authorizing expedited
discovery under Federal Rule of Civil Procedure 26(d) in any
ordinary civil action.114 Courts that adopt this standard seem to
reject the Sony court’s view that file sharers’ speech is entitled
to at least “‘some level of First Amendment protection.’”115
Some courts adjudicating file-sharing cases have applied
the good cause standard only in determining whether to
authorize the issuance of a pre-service subpoena, but then
applied a more burdensome test—typically the Sony test—
upon consideration of a subsequent motion to quash the
subpoena.116 In the first stage, courts routinely find that good
cause was shown, and the order authorizing the pre-service
discovery typically sets forth deadlines for the alleged
113. Arista Records LLC v. Does 1-19, 551 F. Supp. at 4 (explaining that expedited
discovery was authorized on the basis that “‘Defendants must be identified
before this suit can progress further’” (citation omitted)). At least two courts
have applied this very low burden standard in defamation cases, see 1524948
Alberta, Ltd. v. Doe, No. 2:10 cv 0900 TS, 2010 WL 3743907 (D. Utah Sept. 23,
2010); 20/20 Financial Consulting, Inc. v. Does 1-5, No. 10-cv-01006-CMAKMT, 2010 WL 1904530 (D. Colo. May 11, 2010) (Tafoya, Mag. J.), but these
cases appear to be outliers.
114. See FED. R. CIV. P. 26(d) (providing that parties generally may serve discovery
only after Rule 26(f) conference, “except . . . when authorized by . . . court
order”); see also, e.g., Monsanto Co. v. Woods, No. 4:08-CV-00137-CEJ, 2008
WL 821717, at *2 (E.D. Mo. Mar. 25, 2008) (court required showing of good
cause before granting plaintiffs’ ex parte motion for expedited discovery).
115. Sony, 326 F. Supp. 2d at 564 (quoting In re Verizon Internet Servs., Inc., 257 F.
Supp. 2d at 260 (concluding that “there is some level of First Amendment
protection that should be afforded to anonymous expression on the Internet, even
though the degree of protection is minimal where alleged copyright infringement
is the expression at issue”)). In one of these cases, Arista Records LLC v. Does
1-19, the court appeared to acknowledge that alleged infringers have First
Amendment rights, although “exceedingly small,” but nonetheless applied a
good cause standard. 551 F. Supp. 2d at 8, 9 (citation omitted).
116. See, e.g., Arista Records LLC v. Does 1-16, No. 1:08-CV-765 (GTS/RFT)
(N.D.N.Y. July 22, 2008 & Feb. 18, 2009) (Treece, Mag. J.) (applying good
cause standard to allow issuance of pre-service subpoenas, then applying Sony
when considering motion to quash subpoenas); see also Dhillon v. Does 1-10,
No. C 13-1465 SI (N.D. Cal. Oct. 2, 2013) (dkt. 31) (vacating prior order, which
had granted unopposed motion for pre-service subpoena, and ordering briefing),
& (Nov. 4, 2013) (dkt. 43) (denying motion for pre-service subpoena following
briefing).
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infringer to be notified and for the alleged infringer or the ISP
to move to quash the subpoena.117
c.
Privacy Considerations
Privacy is emerging as an issue in some online infringement cases, particularly those where the allegedly infringed
work is sexually explicit.118 Some courts have held that putative
defendants have a privacy interest in their identifying
information, although generally they do not view this interest
as sufficient to justify quashing a subpoena seeking to unmask
their identities.119 For example, one court allowed a Doe
defendant to proceed anonymously—in terms of the
defendant’s filings in the public docket—in an action alleging
infringement of “Horny Black Mothers and Daughters #8,”
noting “the highly sensitive nature and privacy issues that
could be involved with being linked to a pornography film.”120
Still, the court declined to quash the subpoena, holding that
defendants’ privacy interests do not trump plaintiff’s interests
in pursuing an infringement claim.121 Other courts have been
hostile to privacy arguments, however, reasoning that Internet
users have no reasonable privacy interest in the identifying
information they voluntarily share with their ISP.122
117. E.g., Big Ticket Television, No. 1:13-cv-03582 (PAC); LaFace Records, LLC v.
Does 1-5, No. 2:07-CV-187, 2007 WL 2867351, at *3 (W.D. Mich. Sept. 27,
2007).
118. See also Digital Music News LLC, 171 Cal. Rptr. 3d at 808-10 (ordering
subpoena quashed in non-sexual infringement case on state constitutional
privacy grounds where defendant sought to unmask third-party commenter
purporting to be defendant’s employee).
119. See, e.g., Pac. Century Int’l LTD v. Does 1-20, No. 12 C 3073, 2012 WL
5877563, at *1 (N.D. Ill. Nov. 19, 2012) (Internet service subscribers “have at
least a minimal privacy interest” in their identifying information); Millennium
TGA, Inc., 286 F.R.D. at 12 (same).
120. Next Phase Distrib., Inc. v. Does 1-138, No. 11 Civ. 9706 (KBF), 2012 WL
691830, at *2-3 (S.D.N.Y. Mar. 1, 2012).
121. Id.
122. See, e.g., Safety Point Prods., LLC v. Does 1-57, No. 3:12-CV-601, 2013 WL
1398585, at *2 (E.D. Tenn. Apr. 5, 2013) (“The federal courts have consistently
held that internet subscribers do not have a reasonable expectation of privacy in
their subscriber information—including their name and address—as they have
already conveyed such information to their ISPs.”); AF Holdings, LLC v. Does
1-162, No. 11-2306-Civ., 2012 WL 488217, at *3-4 (S.D. Fla. Feb. 14, 2012)
(holding that “‘an individual has no protected privacy interest in their name,
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B. Notification Requirements, Retraction Statute
Compliance, Privacy Policies, and Other Considerations
In addition to requiring the demonstration of the viability of a
claim, courts often have imposed other requirements on subpoenaing
parties. The most significant of these is the notification requirement:
courts routinely require that the anonymous poster be notified of the
subpoena and given time to respond.123 Given that the poster has the
greatest interest in the exercise of his or her anonymity rights, it is not
surprising that courts deem it essential to ensure she or he has the
ability to assert or waive those rights.
Often this begins with the court ordering the subpoena recipient
to attempt to inform the poster that his or her identity is being sought
by forwarding a copy of the subpoena.124 This approach has become
increasingly common—especially where, as is the case with an email
address, phone number, e-mail address, or Media Access Control address when
there is an allegation of copyright infringement’” (quoting First Time Videos,
LLC v. Does 1-18, No. 4:11-cv-69-SEB-WGH, 2011 WL 4079177, at *1 (S.D.
Ind. Sept. 13, 2011))); cf. Gen. Bd. of Global Ministries of the United Methodist
Church, 2006 WL 3479332, at *5 (denying motion for protective order, finding
“there is a minimal expectation of privacy” by one who is alleged to have hacked
into others’ email accounts). Courts have also routinely held that criminal
defendants have no Fourth Amendment right to prevent the government from
obtaining their subscriber information. See, e.g., United States v. Bynum, 604
F.3d 161, 164-65 (4th Cir. 2010).
123. See, e.g., Cahill, 884 A.2d at 461 (“[w]hen First Amendment interests are at
stake we disfavor ex parte discovery requests”); but see Thomas M. Cooley Law
School v. Doe 1, No. 307426, 2013 WL 1363885 (Mich. Ct. App. Apr. 4, 2013)
(declining to impose notification requirement where defendant was already
participating in the litigation). At least one court has declined a subpoenaing
party’s request for an order enjoining the subpoenaed party from notifying the
anonymous speakers of the issuance of the subpoena. See In re ex parte
Application of Ontario Principals’ Council, 2013 WL 6073517, at *3.
124. See UMG Recordings, Inc., 2006 WL 1343597, at *3 (using its “authority under
the Federal Rules” to order a third-party ISP to notify subscribers of plaintiffs’
subpoena for their identities); Mobilisa, Inc., 170 P.3d at 721 (affirming trial
court’s order requiring defendant email service provider to notify John Doe codefendant about the proceedings where plaintiff had tried but failed, and noting
that where a cost is involved, plaintiff may be ordered to pay that cost); Polito v.
AOL Time Warner, Inc., 78 Pa. D. & C.4th 328, 342 (Ct. Com. Pl. 2004)
(requiring ISP to notify anonymous subscribers before disclosing their identities
“to afford them a reasonable opportunity to petition the court to vacate,
reconsider or stay the discovery order”); see also VA. CODE ANN. § 8.01407.1(A)(3) (requiring subpoena recipient to notify anonymous poster via email
of existence of subpoena and to forward copy via registered mail or commercial
delivery service). See discussion of statute in Section IV.C.2 below.
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provider or ISP, the recipient likely is in possession of the poster’s
contact information.125
Alternately, the court may order the subpoenaing party to make
an effort to give notice, for example, by requiring that party to post a
message in the same forum or discussion thread.126
Beyond notification, courts have variously included a number of
other requirements. For example, at least one court in a state with a
retraction statute, a laws that requires a prospective plaintiff to first
request that the media defendant retract the allegedly libelous
statement before suit can be filed, has applied that statute to bar a suit
against an anonymous blogger from whom retraction was never sought
by the plaintiff.127 Not only was the blogger a media defendant to
whom the statute applied, but the court rejected plaintiff’s contention
that anonymity divested the defendant of the right to an opportunity to
retract, observing that the plaintiff “could have posted a retraction
notice in the comments section of [the defendant’s] blog.”128
Additionally, the Dendrite test “require[s] the plaintiff to identify
and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.”129
In Seescandy, the court required that the plaintiff identify the
anonymous speaker “with sufficient specificity,” set forth “all previous
steps taken to locate” the anonymous speaker, and “file a request for
discovery with the Court, along with a statement of reasons justifying
the specific discovery requested as well as identification of a limited
number of persons or entities on whom discovery process might be
served and for which there is a reasonable likelihood that the discovery
125. See, e.g., Solers, Inc., 977 A.2d at 954-55 (noting that “it often will be simpler
and more effective to require the recipient of the subpoena (who likely knows
the identity of the anonymous defendant, or at least knows how to contact him)
to provide such notice” and “leav[ing] it to the trial court to determine in the
circumstances of each case who should notify the anonymous defendant of the
efforts to discover his identity”).
126. See, e.g., Mobilisa, Inc., 170 P.3d at 719-20 (requiring that plaintiff attempt to
notify anonymous speaker via same medium used to send or post speech at
issue); Dendrite, 775 A.2d at 760 (same); see also, e.g., Doe I v. Individuals, 561
F. Supp. 2d at 254 (court noted plaintiff had notified anonymous poster);
Seescandy, 185 F.R.D. at 579 (same); Best W. Int’l, Inc., 2006 WL 2091695, at
*6 (ordering plaintiff to notify anonymous poster); VA. CODE ANN. § 8.01407.1(A)(1)(b) (requiring, inter alia, that party issuing subpoena make reasonable
efforts to identify anonymous communicator).
127. Comins v. VanVoorhis, 135 So. 3d 545, 560 (Fla. Dist. Ct. App. 2014).
128. Id. at 549 n.5, 559.
129. 775 A.2d at 760.
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process will lead to identifying information about defendant that would
make service of process possible.”130
And in Sony, after surveying various requirements imposed by
other courts, the court considered the “specificity of the discovery
request,” the “absence of alternative means to obtain the subpoenaed
information,” whether there was “a central need for the subpoenaed
information” to advance the claim, and the anonymous speaker’s
“expectation of privacy.”131
Finally, a website’s privacy policy may enter into the calculus. A
privacy policy stating that the website owner may disclose a poster’s
identifying information when required by applicable laws,
regulations, legal process, or other enforceable requests may be found
to reduce an anonymous poster’s expectation of privacy. Such was
the case in Swartz v. Doe #1, in which a Tennessee trial court
considered the language of Google’s Privacy Policy in denying a Doe
defendant’s motion to quash a subpoena to Google for the
defendant’s identifying information.132 Other courts have rejected
such arguments, however, either invoking the presumption against
contractual waiver of constitutional rights133 or finding that the
privacy policy, as a whole, in fact provided the user with an increased
expectation of privacy.134
130. 185 F.R.D. at 578-80.
131. 326 F. Supp. 2d at 564-66; accord, e.g., In re Rule 45 Subpoena, 2010 WL
2219343, at *8 (adapting considerations discussed in Sony to unusual case in which
bankruptcy trustee sought identity of anonymous critic of bankrupt company).
132. No. 08C-431 (Tenn. Cir. Ct. Davidson Cnty. Oct. 8, 2009).
133. See Sedersten v. Taylor, No. 09-3031-CV-S-GAF, 2009 WL 4802567, at *3
(W.D. Mo. Dec. 9, 2009) (rejecting the subpoenaing plaintiff’s argument that the
poster had waived his First Amendment rights pursuant to the newspaper’s
privacy policy—which stated that the newspaper reserved the right to disclose
information collected about posters “in any way and for any purpose”—in light
of the presumption against contractual waiver of constitutional rights and the
absence, in the privacy policy, of any indication that a user might be waiving her
anonymity rights).
134. See Cornelius, 2011 WL 977054, at *6 (finding website’s terms of service
created expectation of privacy where they “state[d] that no poster may make any
post that would infringe on another poster’s right to privacy,” and site’s privacy
policy created expectation of privacy where it stated that “protecting users’
privacy is a top priority, and [website] has taken reasonable measures to protect
users’ private information”); McVicker, 266 F.R.D. at 96 (finding that privacy
policy created expectation of privacy in its users where policy “reflects that [the
website operator] will disclose its users’ personally identifiable information only
in very limited situations,” notwithstanding provisions stating that “[t]he
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C. Alternate Approaches
1.
Anonymous Speakers as Witnesses:
The 2TheMart Test
As mentioned above, some courts have opined that the same
level of protection for anonymity rights should apply whether the
poster is sought as a defendant or as a witness.135 In 2001,
however, in 2TheMart, a federal district court in Washington
created a distinct test for consideration of a subpoena seeking the
identifying information of anonymous speakers who were sought
as witnesses.136 Under the 2TheMart test, the subpoenaing party
must demonstrate, “by a clear showing on the record,” that:
(1) the subpoena seeking the information was issued in good faith
and not for any improper purpose,
(2) the information sought relates to a core claim or defense,
(3) the identifying information is directly and materially relevant
to that claim or defense, and
(4) information sufficient to establish or to disprove that claim or
defense is unavailable from any other source.137
Although the court spoke in terms of “good faith,” it explained that
its test imposed a “high burden,” one that was “higher” than those
that had been applied by other courts at that time and that could only
be overcome in “exceptional” cases.138 Moreover, in quashing the
135.
136.
137.
138.
Company may . . . disclose your information in response to a court order” and
“at other times when the Company believes it is reasonably required to do so”).
See supra notes 52 and 73 and accompanying text.
140 F. Supp. 2d 1088. Although denying the motion to quash on mootness
grounds, one court stated it would have applied the 2TheMart test to assess a
defendant’s subpoena issued to a website to unmask anonymous commenters
believed to be the plaintiffs. See Breslin, 2011 WL 1900462.
140 F. Supp. 2d at 1097.
Id. at 1095 (discussing the low burden tests applied in Seescandy and In re
Subpoena Duces Tecum to AOL, Inc. and asserting that “[t]he standard for
disclosing the identity of a non-party witness must be higher than that articulated
in [those cases]. When the anonymous Internet user is not a party to the case, the
litigation can go forward without the disclosure of their identity. Therefore, nonparty disclosure is only appropriate in the exceptional case where the compelling
need for the discovery sought outweighs the First Amendment rights of the
anonymous speaker.”). See also, e.g., In re Anonymous Online Speakers, 661
F.3d at 1176 (the 2TheMart court “recognized that a higher standard should
apply when a subpoena seeks the identity of an anonymous Internet user who is
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defendant’s subpoena, the court held that the subpoena’s “extremely
broad” nature—while not constituting “bad faith per se”—evinced
“apparent disregard for the privacy and the First Amendment rights
of the online users” and thus weighed against the subpoenaing
defendant.139
Although at least four other federal district courts have since
employed the 2TheMart test in similar circumstances,140 none
squarely considered whether it is the proper test to be applied to
efforts to unmask anonymous online witnesses.141 One skirted the
issue by noting that 2TheMart was the test advocated by the
subpoenaing plaintiff and that its application “allow[ed] the Court
to resolve the present issue on narrow grounds and [did] not
not a party to the underlying litigation”); In re Rule 45 Subpoena, 2010 WL
2219343, at *10 (explaining that a higher level of scrutiny must be imposed
before revealing the identities of nonparties); Sedersten, 2009 WL 4802567, at
*2 (noting that “a party seeking disclosure must clear a higher hurdle where the
anonymous poster is a non-party”).
139. 140 F. Supp. 2d at 1095-96.
140. Two courts have declined to apply 2TheMart in unusual cases involving
nonparty anonymous speakers. In one case, a copyright infringement defendant
sought to unmask a third-party online commenter who claimed to be an
employee of the defendant. The appellate court reversed the trial court’s denial
of the commenter’s motion to quash the subpoena, holding both that the
information sought was not reasonably calculated to lead to the discovery of
admissible evidence and, even if it was, the commenter’s right of privacy under
the California Constitution outweighed the defendant’s need for the information
given the possibility of retaliation. The court held that this was “an even more
compelling interest if [the commenter] truly is [the defendant’s] employee . . .
because exposure could endanger not only his or her privacy but also
livelihood.” Digital Music News LLC, 171 Cal. Rptr. 3d at 810. In another case,
the court declined to apply the test where the plaintiff sought identifying
information about email account holders who were not parties to the litigation.
The court held that the subpoenaing plaintiff was “not seeking the content of
emails or a link between the Doe movants’ identities and particular statements
made by them,” and therefore, “in light of these factual differences” between the
case and 2TheMart and others, the court “cannot conclude that any right to
anonymous speech is implicated” and “is not inclined to find . . . that the
exercise of a civil litigant’s subpoena power will encroach upon an online user’s
activities where no speech is at issue.” Chevron Corp. v. Donziger, No. 12-mc80237 CRB, 2013 WL 4536808, at *7 (N.D. Cal. Aug. 22, 2013).
141. Two New York state courts, however, have squarely adopted the 2TheMart test,
both quashing subpoenas for anonymous witnesses’ identities upon applying it.
See Lavelle v. Gannett Satellite Info. Network, Inc., No. 60310/2011 (N.Y. Sup.
Ct. Westchester Cnty. May 8, 2012); Tendler v. Bais Knesses of New
Hempstead, Inc., No. 2284-2006 (N.Y. Sup. Ct. Rockland Cnty. Nov. 16, 2011),
available at http://www.citizen.org/documents/Tendler-v-Doe-Order.pdf.
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require the Court to determine the full extent of the First
Amendment right to anonymity” at issue in the case.142 Two others
simply applied the test with little discussion.143 A fourth adopted
the test in dicta because the parties agreed it applied.144
A striking difference between the 2TheMart test and the tests
that apply to efforts to unmask an anonymous defendant is that the
2TheMart test does not require that a subpoenaing plaintiff’s claim
meet any minimum threshold of viability. The 2TheMart opinion
predates Dendrite, Cahill, and Sony, and is, indeed, one of the
earliest published decisions in this area of law. Since then, most
courts have required that a subpoenaing plaintiff demonstrate, to
some degree, the merits of its claim before unmasking an anonymous defendant. It seems only appropriate that a subpoenaing
plaintiff should be required to make the same type of showing when
trying to unmask an anonymous witness—one who is not even
accused of causing any injury to the plaintiff.145
2.
Virginia: The Good Faith Test
In another of the earliest decisions in this area of the law, a
Virginia court provided only minimal protection for anonymous
speech in a defamation case, imposing a test in which the court
merely asked whether the “pleadings or evidence” demonstrate
that “the party requesting the subpoena has a legitimate, good faith
basis to contend that it may be the victim of conduct actionable in
the jurisdiction where suit was filed and . . . the subpoenaed
identity information is centrally needed to advance that claim.”146
142. Enterline, 2008 WL 5192386, at *4.
143. McVicker, 266 F.R.D. at 95-97 (applying test and finding that party’s request to
unmask anonymous speakers in order to obtain impeachment evidence would
unnecessarily encroach on speakers’ First Amendment rights); Sedersten, 2009
WL 4802567, at *2 (noting that “a party seeking disclosure must clear a higher
hurdle where the anonymous poster is a non-party”).
144. Breslin, 2011 WL 1900462, at *2.
145. But see Jacobson v. Doe, No. CV-12-3098, at 20 (Idaho Dist. Ct. Kootenai Cnty.
July 10, 2012) (court applied 2TheMart test to subpoena for anonymous witness’
identity, oddly reasoning that a plaintiff cannot satisfy the Cahill summary
judgment standard with regard to a third party witness because “Summary
Judgment may only be had between parties to an action”). Requiring the
subpoenaing party to demonstrate the merits of its position may not be workable,
however, where the subpoenaing party is the defendant.
146. In re Subpoena Duces Tecum to AOL, 2000 WL 1210372, at *8. One court has
combined good faith and motion to dismiss concepts in the same analysis. See
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This decision has been largely distinguished or rejected since by
courts addressing claims involving expressive speech.147
The good faith test lives on in Virginia, however, and by its
terms it applies to all cases, whether they involve expressive speech
or not. In 2002, the Virginia General Assembly codified a version of
the good faith test that appears, on its face, to be only slightly
stronger than that developed two years earlier by the circuit court.
The statute requires the subpoenaing party to show either, with
“supporting material,” that “one or more communications that are or
may be tortious or illegal have been made by the anonymous
communicator, or that the party requesting the subpoena has a
legitimate, good faith basis to contend that such party is the victim
of conduct actionable in the jurisdiction where the suit was filed.”148
The Virginia Court of Appeals upheld the statute’s constitutionality in 2014, reasoning that the law properly allows the trial
court to balance the First Amendment rights of the anonymous
speaker against the subpoenaing party’s right to protect its
reputation.149 The court held that, in making either of the required
alternate showings, the subpoenaing party must submit “evidence”
in support of its contentions, thus making clear that the test is, in
fact, more stringent than a mere motion to dismiss test.150 The court
147.
148.
149.
150.
Polito, 78 Pa. D. & C.4th at 341 (plaintiff must “satisfactorily state[] a
cognizable claim under Pennsylvania law” and demonstrate that she “is seeking
the requested information in good faith and not for some improper purpose such
as harassing, intimidating or silencing her critics,” among other requirements).
E.g., Brodie, 966 A.2d at 455 (good faith basis standard “would inhibit the use
of the Internet as a marketplace of ideas”); Krinsky, 72 Cal. Rptr. 3d at 241
(standard “offers no practical, reliable way to determine the plaintiff’s good faith
and leaves the speaker with little protection”).
VA. CODE ANN. § 8.01-407.1(A)(1)(a) (emphasis added). The California
Legislature considered but ultimately did not enact a similar provision. See Julia
Scheeres, Making It Harder for Prying Eyes, WIRED (May 5, 2003), http://www.
wired.com/politics/law/news/2003/05/58720. In 2011, a defamation plaintiff
residing in California withdrew a Virginia subpoena when the anonymous
poster’s counsel filed a motion to quash under the Virginia statute and sought
sanctions against the plaintiff and her attorney for “bringing a meritless suit with
absolutely no ties to the forum state [Virginia]” in an attempt to avoid
California’s anti-SLAPP statute. See Rajagopal v. Does, No. CL 10-3014 (Va.
Cir. Ct. Henrico Cnty. Mar. 7, 2011).
Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 752 S.E.2d 554 (Va. Ct. App. 2014),
cert. granted, No. 140242 (Va. May 29, 2014).
Id. at 564-65, 566-67 & n.7.
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held that the subpoenaing party had submitted sufficient evidence
and affirmed the trial court’s enforcement of the subpoena.151
Since then, another Virginia trial court interpreting the statute,
and applying it in the same fashion as the Court of Appeals,
reached a different result.152 There, the court quashed a subpoena
seeking to obtain the identity of an anonymous commenter to a
local social networking website because the statements at issue
were non-actionable opinion and the plaintiff could not therefore
meet her burden of showing the statements were “tortious or
illegal” or that she had a “legitimate, good faith basis” to believe
that she was the victim of actionable conduct.153
3.
Other Tests
A few courts have developed tests different than those
described above. The most noteworthy is a decision by a federal
magistrate judge that distinguishes between speech on matters of
private concern and speech on matters of public concern, imposing
a greater burden on the plaintiff in the former context. For speech
on matters of private concern, the plaintiff must show a
“reasonable probability” of prevailing on the merits. Where the
speech touches upon a matter of public concern and the plaintiff is
a public figure, the plaintiff need only show a “reasonable
possibility” of success on the merits.154 The court reasoned that
“[a]lthough a ‘reasonable probability’ would be the preferred
standard [in all cases], requiring a standard higher than a
reasonable possibility of recovery is unworkable in cases where
151. The subpoenaing party, a carpet cleaning company that had been disparaged in
reviews on Yelp, submitted evidence “that it made an independent investigation
of its customer database in an attempt to match all of the Yelp reviews with its
customers” and had concluded that “it had no record of having provided services
to [seven of] the posters.” Id. at 558, 567 & n.7. The court held this was
“sufficient evidence” to demonstrate that the company had a “legitimate good
faith basis” to believe the seven reviewers’ comments were false, because Yelp
reviewers hold themselves out to be actual customers of the businesses they
review. Id. at 567 & n.7.
152. Geloo v. Doe, No. CL-2013-9646, 2014 WL 2949508, at *2 (Va. Cir. Ct. Fairfax
Cnty. June 23, 2014).
153. Id. at *3-6; id. at *7 (distinguishing Yelp case on grounds that Yelp is expected
to contain “true facts about the people and businesses reviewed” and because
here, unlike in Yelp, plaintiff did not present sufficient evidence to show that
statements were defamatory).
154. In re Baxter, No. 01-00026-M, 2001 WL 34806203 (W.D. La. Dec. 20, 2001).
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the plaintiff is a public figure” because in those cases the
plaintiff’s burden of proving fault is higher; he or she must prove
“actual malice,” i.e., knowledge of falsity or reckless disregard as
to truth or falsity, rather than mere negligence. While the
“reasonable probability” standard appears to require the production of some evidence, the court’s application of the “reasonable
possibility” standard suggests that reliance on the pleadings alone
is sufficient.155
4.
Ex Parte Applications from Foreign Litigants
Federal judges may grant, pursuant to federal statute, authorization for the issuance of subpoenas seeking the identifying
information of anonymous speakers where that information is
relevant to pending or anticipated proceedings outside the United
States.156 In ruling on such applications, courts are not obliged to
determine whether United States law would allow discovery in
domestic litigation that is analogous to the foreign proceeding.
Rather, they are only required to apply a four-factor test set forth
by the U.S. Supreme Court in a case that did not involve
anonymity or First Amendment rights: (1) whether the material
sought is within the foreign tribunal’s jurisdictional reach and thus
accessible absent Section 1782 aid; (2) the nature of the foreign
tribunal, the character of the proceedings underway abroad, and
the receptivity of the foreign tribunal to U.S. federal court
jurisdictional assistance; (3) whether the request conceals an
attempt to circumvent foreign proof-gathering restrictions or other
policies of a foreign country or the United States; and (4) whether
the subpoena contains unduly intrusive or burdensome requests.157
As a result, anonymous online speakers can be more readily
exposed through such applications than they would be pursuant to
the standards imposed in ordinary domestic litigation as described
above. Although the statute expressly prohibits orders that compel
disclosures “in violation of any legally applicable privilege,” the
ex parte nature of the application process means that the First
155. See id. at *12-17.
156. The federal statute, found at 28 U.S.C. § 1782, is titled “Assistance to foreign
and international tribunals and to litigants before such tribunals.” See, e.g., In re
ex parte Application of Ontario Principals’ Council, 2013 WL 6073517, at *2
n.12 (Section 1782 applications may issue even where foreign proceeding has
not yet been initiated).
157. Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 263-65 (2004).
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Amendment rights of the speakers generally are not raised or
considered unless and until a motion to quash a court-authorized
subpoena is filed.158 The statute does not contain a notification
requirement, however, leaving the possibility that some speakers
may not learn that their identity was sought until after it is
disclosed.
D. Criminal and Administrative Proceedings
An increasingly uniform set of standards is being applied in
criminal and administrative matters to balance the interests of the
parties in those proceedings against the anonymity rights of putative
defendants and nonparty witnesses. These standards have been slow
to emerge due to the limited number of published decisions in cases
of this nature.159 There are several possible explanations for this.
Criminal and administrative subpoenas are often not litigated. Some
subpoena recipients are more willing to respond to subpoenas and
informal requests perceived as aiding legitimate criminal investigations.160 In other instances, where a subpoena recipient indicates that it
158. Compare id. (applicant did not raise, nor did court consider, First Amendment
implications of application), In re Gianasso, 2012 WL 651647 (same), and In re
Application for Appointment of a Comm’r, 2011 WL 2747302 (same), with In re
Lazaridis, 865 F. Supp. 2d 521 (quashing subpoena, post-issuance, once
subpoena recipient raised speakers’ rights to privacy and anonymous expression)
and London, 279 F. App’x at 515-16 (affirming denial of motion to quash,
despite First Amendment implications, where identifying information was
sought in order to evaluate whether individual was using certain email accounts
to solicit sex partners online).
159. There may be an uptick in court decisions in such cases as Internet companies
are receiving more requests for information from government agencies and are
complying with fewer of them. See, e.g., Ryan Gallagher, Google: Government
Surveillance Requests Are Way Up—and the U.S. Is the Leader, SLATE (Nov. 14,
2012, 8:30 AM), http://www.slate.com/blogs/future_tense/2012/11/14/google_
transparency_report_shows_government_surveillance_takedown_requests.html
(“Google received 20,938 inquiries from government entities around the world for
user data in the first half of [2012]—a 55 percent increase in requests received
during the same period in 2010. The United States by far made the most requests
for user data, submitting more than one-third of the 20,938 received.”); Google,
Transparency Report – Requests for User Information, http://www.google.com/
transparencyreport/userdatarequests/ (last visited Sept. 2, 2014) (In the July to
December 2010 period, partial or full compliance with such requests was 76%, but
that dropped slightly each period until it was 64% in the July to December 2013
period).
160. See, e.g., Debra Cassens Weiss, Airbnb Will Provide Anonymous User Data in
New York’s Investigation of Illegal Hotels, A.B.A. J. (May 21, 2014), available
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will move to quash or narrow the subpoena, the issuing party may
capitulate rather than expend limited resources seeking to compel
compliance.
1.
Government Subpoenas: The Compelling
Interest/Sufficient Nexus Standard
Government efforts to identify an anonymous speaker sought
as a defendant in a criminal or administrative proceeding are
generally subject to a “compelling interest/sufficient nexus”
standard, one in which the bona fides of the underlying case are
examined to some degree but that often results in the divestment of
anonymity rights.161 A “least restrictive means” element is often
added to this standard when the subpoena is issued in
administrative proceedings.
A recent decision applying the compelling interest/sufficient
nexus test is found in In re Grand Jury Subpoena No. 11116275,
where a pseudonymous Twitter account holder challenged the
issuance by a federal grand jury of a subpoena seeking to identify
the person who tweeted “I want to fuck Michelle Bachmann in her
ass with a Vietnam era machete.”162 The District Court for the
District of Columbia held that, to defeat a motion to quash a grand
jury subpoena that would infringe on First Amendment anonymity
rights, the government must demonstrate “‘a compelling interest in
the sought-after material’” and “‘a sufficient nexus between the
subject matter of the investigation and the information
at http://www.abajournal.com/news/article/airbnb_will_give_anonymous_user_
data_to_new_yorks_investigation_of _illegal_/ (home rental website agreed to
turn over, to New York attorney general, identifying information about users
who used site to list apartment rentals so that attorney general could look for
violations of state hotel law); Geoff Liesik, Ex-Utah Police Chief Resolves
Criminal Defamation Case with an Apology, DESERET NEWS (Jan. 16, 2013,
12:25 PM MST), http://www.deseretnews.com/article/865570830/Ex-Utahpolice-chief-resolves-criminal-defamation-case-with-an-apology.html
(when
told by investigators that police chief’s name was being unlawfully used by
another to post derogatory comments on a website that honors fallen law
enforcement officers, website operator “provided information that helped
investigators identify the laptop used to post them”).
161. See Branzburg, 408 U.S. at 682 (“[c]itizens generally are not constitutionally
immune from grand jury subpoenas”); see also State v. Reid, 945 A.2d 26, 35
n.4 (N.J. 2008) (“declin[ing] to import Dendrite’s analysis to the grand jury
context” when grand jury subpoena sought theft defendant’s ISP subscriber
information).
162. 846 F. Supp. 2d 1, 3 n.2 (D.D.C. 2012).
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[sought],’”163 a test adopted from decisions issued by the Eighth
and Eleventh Circuits and a prior decision in that same district
involving anonymous speech rights.164 The court held that the
government had made this showing: “The government and the
grand jury surely must know the identity of an individual making a
threat in order to ascertain whether he intended the threat to be
‘true,’” at least in the narrow factual context where “[t]he
government must take seriously all threats against a major
presidential candidate.”165
A Northern District of California decision illustrates the
addition of the “least restrictive means” element in the administrative context. In Doe v. U.S. Securities & Exchange Commission,
the court considered a subpoena issued by the SEC to Google,
which sought identifying information about a person suspected of
using an email account, under a pseudonym, to tout stock as part
of an allegedly illegal “pump and dump” scheme.166 The court
rejected the argument, raised by the anonymous target in a motion
to quash, that the Cahill summary judgment standard applied.
Instead, the court relied on an another Ninth Circuit case—which
it described as “set[ting] forth the well-established First
Amendment analysis of agency-issued subpoenas”—and
determined that, “if a movant makes a prima facie showing of First
Amendment infringement, the burden shifts to the government to
show (1) ‘that the information sought through the subpoenas is
rationally related to a compelling governmental interest,’ and
(2) ‘the government’s disclosure requirements are the least
restrictive means of obtaining the desired information.’”167 The
court held that the government met both aspects of this test, noting
that “by only requesting Doe’s identifying information and the
limited communications between Google and Doe, the SEC has
pursued the least restrictive means of pursuing that governmental
interest.”168
163. Id. at 4 (quoting In re Grand Jury Investigation of Possible Violation of 18
U.S.C. § 1461, 706 F. Supp. 2d 11, 18 (D.D.C. 2009)).
164. Id. at 4-5 (also citing In re Grand Jury Subpoenas Duces Tecum, 78 F.3d 1307,
1312-13 (8th Cir. 1996); In re Grand Jury Proceeding, 842 F.2d 1229, 1236
(11th Cir. 1988)).
165. Id. at 6, 7.
166. 2011 WL 5600513, at *1.
167. Doe v. SEC, 2011 WL 5600513, at *3, 4 (citing Brock v. Local 375, Plumbers
Int’l Union, 860 F.2d 346, 350 (9th Cir. 1988)).
168. Id.
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Unlike in the civil context, where the level of protection for
anonymity rights typically differs depending on whether the
speaker is a putative defendant or a third party witness in the case,
in criminal and administrative proceedings, courts have applied the
same standard to government subpoenas regardless of which of
these roles the anonymous speaker is expected to play in the
proceeding. For example, the compelling interest/sufficient nexus
standard was applied by the In re Grand Jury Investigation of
Possible Violation of 18 U.S.C. § 1461 court in the D.C. District
Court when it considered a challenge to a grand jury subpoena
seeking the identities of persons who had made purchases from a
company that was being investigated for allegedly purveying
obscenity.169 The court quashed the subpoena because, inter alia,
the identities of the putative defendant’s customers were not
necessary to prosecute the defendant, the subpoena was overbroad
because it included within its scope potentially non-obscene
materials, and records of sales made outside of the District of
Columbia were not relevant to the grand jury’s investigation since
what is “obscene” is determined by local community norms.170
This standard was also applied by the In re Grand Jury
Subpoena to Amazon.com Dated August 7, 2006 court in the
Western District of Wisconsin, where a grand jury subpoena
sought the identities of customers of a used book dealer who was
being investigated for fraud and tax evasion. The court explained:
Whether one calls [it] a “substantial relationship” test or a “compelling
interest” test, the result is the same: although a grand jury subpoena is
presumed valid and enforceable, if the witness demonstrates a
legitimate First Amendment concern raised by the subpoena, then the
government must make an additional showing that the grand jury
actually needs the disputed information.171
Observing that “it is an unsettling and un-American scenario to
envision federal agents nosing through the reading lists of lawabiding citizens while hunting for evidence against somebody
else,” the court went on to fashion a remedy that protected the
readers’ rights to remain anonymous even though it found that “the
government has a bona fide investigative need to contact and
169. 706 F. Supp. 2d at 16-23.
170. Id.
171. 246 F.R.D. 570, 572 (W.D. Wis. 2007).
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interview at least some of the people who bought used books from
[the target] through Amazon.172
And in Amazon.com, LLC v. Lay, where a demand by North
Carolina’s Department of Revenue seeking to impose tax liability
on Amazon called for Amazon to reveal its customers’ identities
and their purchases, the Western District of Washington granted
summary judgment for Amazon, holding that the Department had
failed to demonstrate (1) “‘a compelling governmental interest
warrants the burden, and that less restrictive means to achieve the
government’s ends are not available’”;173 (2) “a ‘substantial
relation between the information sought and a subject of
overriding and compelling state interest’”;174 and (3) an “‘actual[]
need[] [for] the disputed information.”175 The court granted the
motion because the Department’s requests were not “the least
restrictive means” to obtain the information “even assuming there
is a compelling need to calculate Amazon’s tax liability,” and were
“overbroad” since they sought both the identities of the purchasers
and detailed information about their purchases, including the
expressive content.176
2.
Criminal Defendants’ Subpoenas: Relevance,
Admissibility, and Specificity
The lowest burden applied in the criminal context appears in
cases in which a criminal defendant seeks to unmask an
anonymous speaker. In a case involving a criminal defendant’s
subpoena seeking the identities of certain anonymous
commenters to a newspaper’s website, whom the defendant
believed were prosecutors in the local U.S. Attorney’s office, the
court in United States v. Jackson stated that the First Amendment
right to anonymous speech, “limited” in that context where the
172. Id. at 573; see id. at 573-74 (ordering a “filtering mechanism that calls for
volunteer witnesses from the enormous pool of customers who bought used
books from [the target]”).
173. 758 F. Supp. 2d 1154, 1169 (W.D. Wash. 2010) (quoting United States v. C.E.
Hobbs Found., 7 F.3d 169, 173 (9th Cir. 1993) (setting the standard for a First
Amendment challenge to an IRS summons)).
174. Id. (quoting Gibson v. Fla. Legis. Investigation Comm., 372 U.S. 539, 546
(1963) (involving legislative subpoena)).
175. Id. (quoting In re Grand Jury Subpoena to Amazon.com Dated August 7, 2006,
246 F.R.D. at 572, discussed supra at notes 171-172 and accompanying text).
176. Id.
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speakers were allegedly government employees, was outweighed
by the Due Process right the court believed the defendant was
seeking to vindicate.177 Citing the standard for evaluating
subpoenas in criminal cases set forth in United States v. Nixon,
418 U.S. 683 (1974)—which requires a showing of relevancy,
admissibility, and specificity—and noting that the defendant
showed that she “has at least a colorable claim of prosecutorial
misconduct, that the identity of these two commenters is relevant
to it, and that she cannot adequately prepare that defense without
access to those identities,” the court ordered in camera
disclosure.178
An Illinois court evaluating a criminal defendant’s subpoena seeking
the identity of a newspaper website anonymous commenter—whom
the defendant speculated was a prosecution witness—applied a
slightly more burdensome standard. Although the court similarly
analyzed the request for relevance, admissibility, and specificity, it
added an exhaustion element similar to the “least restrictive means”
element found in administrative cases, citing the First Amendment
interest in anonymous speech. The court in People v. Hyde granted
the prosecution’s motion to quash the subpoena from the bench,
ruling that the defendant had not shown the information was
essential and had not exhausted other means of demonstrating the
witness’s bias.179
*****
Although it is difficult to make generalizations from such a
small sampling of cases, it is worth making two observations at
this juncture. First, the standards applicable in criminal and
administrative proceedings have proven fairly robust in protecting
the anonymity rights of third parties but weak in protecting
177. 2014 WL 585412, at *2, 4. Although the mandamus petition filed by the
newspaper was dismissed, the direct appeal is currently pending with the Fifth
Circuit. See In re Times-Picayune, LLC, 2014 WL 1364909.
178. 2014 WL 585412, at *2, 4.
179. Tr. of Oral Arg. at 17:23-23:14, Hyde, No. 09 CF 2305 (Ill. Cir. Ct. Lake Cnty.
May 26, 2011); Tony Gordon, Evidence in Theft Case May Have Been Altered,
Prosecutors Say, DAILY HERALD (May 17, 2011), http://www.dailyherald.com/
article/20110517/news/705179839/. See also Texas v. Martinez, No. 17042-B
(Tex. Dist. Ct. Taylor Cnty. June 19, 2009) (quashing, without explication,
subpoena issued by criminal defendant after recipient newspaper argued that
civil Dendrite test applied to protect identity of person who had anonymously
posted comments to newspaper’s website).
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defendants’ anonymity rights. Second, as a practical matter, where
the alleged crime or other illegality does not itself involve speech,
criminal and administrative subpoenas may more easily survive
the “compelling interest” and “sufficient nexus” standard. But
where the crime being investigated is a speech crime—such as
harassment or the making of threats—a subpoena is more
vulnerable to being quashed. Although the D.C. District Court
upheld such a subpoena in the Michele Bachmann threat case, the
court expressly limited that case to its facts—the expression of a
threat against a major presidential candidate.180 In contrast, in a
case involving a criminal investigation of a speech crime, a New
York trial court quashed a grand jury subpoena issued to a
newspaper upon finding that the blog comments made by the
putative defendants, who were under threat of prosecution for
harassment, were not “true threats” sufficient under First
Amendment principles to support such a prosecution.181
Given these developments—and the absence of any competing
standards in these contexts182—it appears likely that the “compelling interest” and “sufficient nexus” formulation (with the “least
restrictive means” element added in administrative proceedings)
will take hold.183 This approach is well-established in offline cases
involving First Amendment-based anonymity rights. For example,
in In re Grand Jury Subpoenas Duces Tecum, the Eighth Circuit
180. See supra notes 162-165 and accompanying text.
181. See Straus Newspapers Inc. v. People (N.Y. Sup. Ct. Orange Cnty. Feb. 9, 2010)
(transcript of oral argument). In Straus, since the court held that there was no
underlying crime that could be prosecuted, it did not reach the independent
question of what level of scrutiny would be applied to protect the putative
defendant’s First Amendment right to remain anonymous.
182. But see In re Identity Theft, Temp. No. 5018, at 10-11 (La. Dist. Ct., Terrebonne
Parish Oct. 26, 2009) (transcript of hearing) (court denied newspaper’s motion to
quash subpoena for identity of defendant in criminal defamation prosecution,
noting that “I don’t think that an individual can just go and publish what they
want and expect to be protected” and holding that the fact that defendant made
“specific factual allegations” in his online comments sufficed to require that
newspaper divulge his identity).
183. One pending case in California may shed additional light on what the
appropriate standard should be, even though the procedural and substantive
posture of the case is different. In Doe v. Harris, No. 13-15263 (9th Cir. argued
Sept. 10, 2013), the Ninth Circuit is considering an appeal of a district court
order granting an injunction blocking enforcement of that portion of a recentlyenacted citizen initiative that requires convicted sex offenders to register all of
their online screen names with the government.
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applied this standard when holding that Independent Counsel
subpoenas requesting information about political contributions by
persons having a financial relationship with Bill and Hillary
Clinton survived constitutional scrutiny, building from decisions
issued by the Fifth and Eleventh Circuits.184 And in Grand Jury
Witness v. United States, the Second Circuit applied a similar
analysis in upholding a grand jury subpoena requiring a Hells
Angel Motorcycle Club member to testify concerning the
membership, funding, and organizational structure of the club.185
3.
Challenges to Subpoenas Under the Reporter’s
Privilege
Shield laws embodying the reporter’s privilege may be invoked
to quash subpoenas issued in criminal and administrative
proceedings, as they are in the civil context.186 To date, such laws
have been effectively invoked to quash or partially quash subpoenas
issued in prosecutions in Colorado, Illinois, and North Carolina,187
but such an effort was unsuccessful in South Carolina.188
For example, in Illinois, a trial court somewhat reluctantly
applied the state shield law to partially quash a subpoena in a
criminal prosecution for the murder of a child.189 There, the
government subpoena sought, from a local newspaper, records
leading to the identity of five anonymous posters to the
newspaper’s website. Finding that two of the posters’ comments
184. 78 F.3d at 1312-13 (citing In re Grand Jury Proceeding, 842 F.2d at 1236; Glass
v. Heyd, 457 F.2d 562, 564-65 (5th Cir. 1972)).
185. 776 F.2d 1099, 1102-03 (2d Cir. 1985). The court also examined whether the
subpoena was overbroad and whether “particularized harm such as harassment
or reprisals may result from the disclosure of associational relationships.” Id. at
1103 (citing Branzburg, 408 U.S. at 680-81 and Buckley v. Valeo, 424 U.S. 1, 74
(1976)).
186. See Section V.A below (discussing application of reporter’s privilege in civil
context).
187. See People v. Bruce, No. 09M3247 (Colo. Springs Mun. Ct. Oct. 27, 2009)
(applying Colorado Press Shield Law, § 13-90-119(2), C.R.S., to quash subpoena
issued to newspaper website for identity of individual alleged to be exculpatory
witness to allegedly criminal conduct); Alton Tel. v. Illinois, No. 08-MR-548, 37
Media L. Rep. 2084 (BNA) (Ill. Cir. Ct. Madison Cnty. May 15, 2009); People
v. Mead, No. 10 CRS 2160 (N.C. Super. Ct. Gaston Cnty. Aug. 16, 2010)
(applying North Carolina shield law, N.C. GEN. STAT. § 8-53.11, to grant
newspaper’s motion to quash subpoena issued by criminal defendant).
188. Brockmeyer, 751 S.E.2d 645.
189. Alton Tel., 37 Media L. Rep. (BNA) at 2086-87.
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related to “the Defendant’s prior conduct, his propensities for
violence, and relationship with the child,” the court concluded that
the prosecution had overcome the shield law privilege as to those
two posters; the court reasoned that “the information sought is
relevant,” “all sources of information have been exhausted” where
the prosecution had already conducted 117 interviews, “and first
degree murder of a child impacts the public interest.”190 The court
quashed the subpoena as to the remaining three posters because it
found their comments “appear[ed] to be nothing more than
conversation/discussion.”191 Notably, despite applying the shield
law, the court strongly suggested that the statute’s definition of
“source” did not include individuals who voluntarily post
information “in response to” an article, and the court invited the
legislature to clarify the issue.192 In this regard, the decision is
similar to that of a California appellate court in O’Grady v.
Superior Court, which suggested, in dicta, that California’s shield
law may not apply when website operators “simply open[] their
Web sites to anonymous tortfeasors, for a fee or otherwise.”193
The same reasoning led the South Carolina Supreme Court to
observe, in dicta, that its shield statute would not have applied in
the case of a murder defendant’s subpoena seeking the identity of
a potential witness who left a comment on a television station’s
website “because the information was not source information but
rather voluntary expression by an anonymous person.”194
A Kansas court held that the state’s shield law applied but that
the privilege was overcome in a felony prosecution for interference
with the judicial process. In that case, prosecutors sought the
identity of a person who posted, to a newspaper article about a
murder trial, anonymous comments about jury deliberations in that
190. Id. at 2087. The relevant portions of the shield law provide that “[n]o court
may compel any person to disclose the source of any information obtained by
a reporter” unless “all other available sources of information have been
exhausted . . . [and] disclosure of the information sought is essential to the
protection of the public interest involved.” 735 ILCS 5/8-901, 907(2).
191. Alton Tel., 37 Media L. Rep. (BNA), at 2087.
192. Id. at 2086-87 (emphasis in original). A “source” is defined by the shield law as
“the person or means from or through which the news or information was
obtained.” 735 ILCS 5/8-902(c).
193. 44 Cal. Rptr. 3d 72, 98 (Ct. App. 2006).
194. Brockmeyer, 751 S.E.2d at 652 n.9. The court held that although the defendant
otherwise “present[ed] a compelling argument for the disclosure of the
commenter,” he had failed to preserve the issue for appeal. Id. at 652-53.
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trial.195 The court held that the prosecution had made the necessary
showing to overcome the privilege; the state had a compelling
interest in determining the identity of the poster, which it suspected
was a sitting juror in the case, and questioning the other jurors, who
had already attended a month-long trial, was not a “readily available
alternative means” to obtain the information.196
And a California court rejected a newspaper’s motion to quash
a criminal defendant’s subpoena for the identity of a percipient
witness to the alleged crime without reaching the question of
whether the state’s shield law applied. There, the court held that
the defendant’s federal due process rights would trump any state
constitutional and statutory shield law-based right the newspaper
might have.197
V.
ADDITIONAL PROTECTIONS FOR ANONYMOUS
ONLINE SPEECH
Subpoenas for anonymous online speakers’ identities have also been
challenged on grounds other than the speakers’ First Amendment rights.
In addition to the procedural arguments applicable to any subpoena,198 a
subpoena recipient might, for example, assert the reporter’s privilege,
move to strike the subpoena under “anti-SLAPP” laws designed to
protect participation in public dialogue, challenge the court’s jurisdiction,
195. See In re Inquisition into the Offense of Interference with the Judicial Process in
Violation of K.S.A. 21.5905(a)(6)(C) (State v. Stovall), No. 12-IQ-50, at 1-2
(Kan. Dist. Ct. Shawnee Cnty. Oct. 26, 2012).
196. Id. at 5-7. In another interesting case, a Tennessee court denied a capital
defendant’s motion to order media outlets to disable a portion of their websites
to prohibit web users from posting comments about any stories related to the
case or, alternatively, to require the users to use their true names and addresses
or to “establish guidelines for acceptable comments on the internet forums and
employ real-time monitors to ensure compliance.” Tennessee v. Cobbins, Nos.
86216 A-D, 2009 WL 2115350 (Tenn. Cit. Ct. Knox Cnty. Apr. 14, 2009).
197. See People v. Kuehl, No. 09HF0538 F A (Cal. Sup. Ct. Orange Cnty. Aug. 18,
2009) (where criminal defendant sought identity of anonymous poster who was
percipient witness to fatal car accident, court denied newspaper’s motion to
quash subpoena, holding that “[e]ven if the California Shield Law is applicable
to the subject information, the defendant’s due process right to a fair trial
supersedes any otherwise conflicting rights of the moving party [or the
anonymous poster]”).
198. For example, subpoenas issued under the DMCA may be defective if they are
not issued in accordance with the Act’s specific requirements, see 17 U.S.C.
§ 512(h), and the Federal Rules of Civil Procedure set forth other bases upon
which a subpoena must or may be quashed, see FED. R. CIV. P. 45(c)(3).
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invoke other laws as a shield, or argue that enforcement of the subpoena
would be futile.199
A. Reporter’s Privilege
Depending on the contours of the reporter’s privilege in a
particular jurisdiction, a media company that receives a subpoena for
an anonymous poster’s identity may be able to assert the statutory or
common law privilege. State shield laws have been successfully
invoked to block the unmasking of anonymous speakers in Montana,
Florida, Oregon, Colorado, North Carolina, and Illinois,200 and a
Kansas court held that the state’s shield law applied but had been
successfully overcome.201 In South Carolina, Indiana, Idaho, and
Kentucky, however, courts have found the reporter’s privilege
inapplicable in this context.202
An Indiana appellate court declined to apply its state shield law
to protect the identity of one who voluntarily posted a comment to a
199. See Gunning v. Doe, No. CV-13-359 (Me. Super. Ct. Cumberland Cnty. Mar.
21, 2014) (court reportedly denied motion for leave to effect service on
anonymous poster via poster’s counsel on ground that alternate service would be
futile given that counsel could not be required to divulge defendant’s name),
discussed in Sigmund D. Schutz, California and Maine Courts Foil Candidate’s
Attempt to Sue Anonymous Parody Newspaper, MLRC MEDIALAWLETTER
(Media Law Resource Ctr., New York, N.Y.), Aug. 25, 2014 at 17.
200. Beal v. Calobrisi, No. 08-CA-1075 (Fla. Cir. Ct. Okaloosa Cnty. Oct. 9, 2008)
(applying Florida Shield Law, FLA. STAT. § 90.5015, to grant third-party
newspaper’s motion to quash subpoena seeking identifying information of
anonymous poster to newspaper’s website); Costello v. SuperValu Inc., No. 412009-CA-001150, 38 Media L. Rep. (BNA) 2407 (Fla. Cir. Ct. Manatee Cnty.
Aug. 30, 2010) (same); Doty v. Molnar, No. DV 07-022 (Mont. Dist. Ct.
Yellowstone Cnty. Sept. 3, 2008) (applying Montana Media Confidentiality Act,
MONT. CODE ANN. § 26-1-902, et seq., in action for defamation and false light
invasion of privacy and granting third-party newspaper’s motion to quash
subpoena for identifying information about various persons who had
anonymously posted comments to articles in newspaper’s online edition); Doe v.
TS, No. 08030693 (Or. Cir. Ct. Clackamas Cnty. Sept. 30, 2008) (applying
Oregon Media Shield Law, O.R.S. § 44.510, et seq., to deny plaintiff’s motion to
compel production of information identifying author of anonymous blog
comment); see also supra notes 187-197 and accompanying text (discussing
reporter’s privilege in criminal context).
201. See supra notes 195-196 and accompanying text.
202. Jacobson, No. CV-12-3098 (considering common law Idaho reporter’s
privilege); In re Ind. Newspapers, Inc., 963 N.E.2d 534 (considering IND. CODE
§ 36-46-4); Clem v. Doe, No. 08-CI-1296 (Ky. Cir. Ct. Madison Cnty. Mar. 25,
2010) (considering KY. REV. STAT. ANN. § 421.100). See also supra notes 192194 and accompanying text.
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newspaper website, notwithstanding the broad language of that
state’s shield law. The court found that the anonymous speaker was
not “the source of any information” where his comments were written
“only after [the] article was published and not during the newsgathering process” and where “there [was] no evidence that [the newspaper]
used this anonymous post in any way to further investigate and report
on its initial story.”203
Courts in Idaho and Kentucky also expressed discomfort with
extending the reporter’s privilege beyond its traditional application to
confidential news sources. An Idaho trial court determined that the
state’s common law privilege should not apply where (1) the reporter
invoking the privilege “was not acting as a reporter when the
statements were made, but instead was acting as a facilitator of
commentary and administrator of the Blog,” (2) the newspaper did
not view the comment as “newsworthy,” and (3) the newspaper did
not intend “to use the information [in the comment] to create a news
story or editorial opinion.”204
In Kentucky, a trial court reasoned that an anonymous comment
on a newspaper website was not “procured or obtained by any
reporter,” as required by the shield law, because the website’s terms
of service stated that the content of such comments was “not
controlled by the newspaper” and “the newspaper [does not] take any
responsibility for the accuracy of the contents of the web posting.”205
Under these circumstances, the court concluded, application of the
shield law “would well extend the purpose of the privilege.”206
Invocation of the reporter’s privilege by those resisting subpoenas
for anonymous posters’ identities must be carefully undertaken, as it
could—at least theoretically—work to undermine support for the
privilege. As discussed above with respect to a website provider
asserting a poster’s First Amendment rights, the combination of shield
law protection for the anonymous poster together with Section 230
immunity for the website operator could leave legitimately injured
plaintiffs without a legal remedy.207 As a result, some practitioners fear
203. Ind. Newspapers, Inc., 963 N.E.2d at 547 (finding outcome “consistent with our
legislature’s intent” when the anonymous post is not evaluated by “a bona fide
owner, editorial or reportorial employee”); see also supra note 194 and
accompanying text.
204. Jacobson, No. CV-12-3098 at 9.
205. Clem, No. 08-CI-1296, at 3 (Ky. Cir. Ct. Madison Cnty. Mar. 25, 2010).
206. Id.
207. See supra notes 10 and 33-35 and accompanying text.
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that state legislators might seek to narrow shield laws to rebalance the
poster’s and plaintiff’s competing rights, with the consequence being
encroachment on the protection presently enjoyed by the press for
keeping its more traditional sources confidential. While this concern is
perhaps well placed with respect to those few jurisdictions where
shield law protection is absolute, it seems exaggerated overall since
plaintiffs with meritorious claims against anonymous speakers should
be able to overcome most states’ shield laws, which offer only
qualified protection.
B. Anti-SLAPP Statutes
Although there are few decisions on the issue, if the anonymous
speech at issue concerns a matter of public interest, an anti-SLAPP
statute—a statute designed to curb “Strategic Lawsuits Against
Public Participation”—may provide the anonymous poster, or a
website operator or ISP, not only with immunity from suit but also
with attorneys’ fees for a motion to quash a subpoena for the poster’s
identity.208 Anti-SLAPP statutes, which have been adopted in many
states, provide an early procedural device to dispose of cases arising
from speech on issues of public concern.
In Doe No. 1 v. Burke, the District of Columbia’s highest court
reversed a lower court’s denial of a motion to quash brought pursuant
to D.C.’s anti-SLAPP statute. The court held, as a threshold matter,
that the movant made a prima facie showing that his challenged
speech was “in furtherance of the right of advocacy on issues of
public interest,” as required under the statute—notwithstanding the
subpoenaing party’s contention that the speaker had a commercial
motivation entitled to lesser First Amendment protection—because
208. See, e.g., Global Telemedia Int’l Inc. v. Doe 1, 132 F. Supp. 2d 1261, 1269-71
(C.D. Cal. 2001) (granting defendants’ motion to strike pursuant to California’s
anti-SLAPP statute in a defamation action brought against those who had
anonymously posted comments to a securities dealers’ message board); Paterno
v. Super. Ct., 78 Cal. Rptr. 3d 244, 250 (Ct. App. 2008) (“The [California] antiSLAPP statute reinforces the self-executing protections of the First
Amendment”) (citing Krinsky, 72 Cal. Rptr. 3d at 231). But see Stone v. Paddock
Publ’ns, Inc., No. 2009L005636, slip op. at 3 (Ill. Cir. Ct. Cook Cnty. Nov. 9,
2009) (holding that Illinois anti-SLAPP statute does not apply to Rule 224 pretrial motion to discover an anonymous poster because such a motion is not a
lawsuit and does not allege injury, and even if it did, whether the allegedly
defamatory statements were aimed at procuring government action, as required
for anti-SLAPP statute to apply, was question of fact outside scope of Rule 224
proceeding), rev’d on other grounds, 961 N.E.2d 380 (Ill. App. Ct. 2011).
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the plaintiff was a limited purpose public figure.209 Holding that the
facts presented made it unlikely the plaintiff could prove the
defendant acted with actual malice, the court granted the motion to
quash because the plaintiff was not able to show, as required under
the statute, a likelihood of success on the merits.210
In 2009, California amended its anti-SLAPP statute to deter
frivolous efforts from outside California to unmask anonymous
speakers inside the state. Although the statute previously could be
used only to strike a complaint, cross-complaint, petition, or other
pleading filed in a California court,211 the law has been expanded to
permit motions to strike subpoenas that originate from litigation
based outside the state.212
C. Procedural Defenses
Some courts have refused to unmask anonymous speakers purely
on procedural grounds. For example, the Court of Appeals for the
District of Columbia Circuit has held that subpoenas seeking to
identify John Doe defendants should be quashed unless the plaintiff
can show a good faith basis to believe that personal jurisdiction exists
and venue is proper.213 Some federal courts have dismissed diversity
actions against John Doe speakers for lack of subject matter
209. 91 A.3d 1031, 1041-44 (D.C. 2014).
210. Id. at 1045. Perhaps because it was ruling under statutorily-imposed
requirements and not the common law, the court did not adopt or even address
the loosening of the burden on subpoenaing parties to produce evidence of actual
malice adopted by some courts reviewing motions to quash subpoenas for
anonymous speakers’ identities. See supra note 58 and accompanying text.
211. See Tendler v. www.jewishsurvivors.blogspot.com, 79 Cal. Rptr. 3d 407, 411
(Ct. App. 2008).
212. CAL. CODE CIV. PROC. §§ 1987.1-1987.2 (amended subpoena provisions); id. §§
425.16-425.18 (provisions related to motions to strike pleadings); see also In re
Doe I, No. CPF 13 513271 (Cal. Super. Ct. S.F. Cnty. Dec. 11, 2013) (quashing
subpoena and awarding attorneys’ fees); see also Corynne McSherry, California
Governor Signs Off on New Protections for Free Speech, ELEC. FRONTIER
FOUND. (Oct. 2, 2008), http://www.eff.org/deeplinks/2008/10/californiagovernor-signs-new-protections-free-spe (discussing impact of the law’s terms).
213. AF Holdings, LLC v. Does 1-1058, 752 F.3d 990, 995-97 (D.C. Cir. 2014); see
also In re John Doe aka “Trooper,” No. 13-0073 (Tex. Aug. 29, 2014) (holding
that pre-action petition for discovery should be denied where anonymous
commenter claimed insufficient contacts with Texas and plaintiff offered no
evidence to contrary).
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jurisdiction because the citizenship of the speakers was unknown.214
A federal court in Missouri rejected a plaintiff’s request for prelitigation discovery made pursuant to Federal Rule of Civil Procedure
27, holding that “the purpose of Rule 27,” which governs
“Depositions to Perpetuate Testimony,” is “to prevent the loss of
evidence; it is not a means for conducting pre-litigation discovery.”215
And the California Court of Appeal rejected a subpoena on the
ground that the information sought was not reasonably calculated to
lead to the discovery of admissible evidence.216
Most cases addressing procedural defenses have arisen in the
context of alleged copyright infringement. In recent years, federal
courts have been confronted with a “nationwide blizzard” of mass
copyright infringement lawsuits, the majority filed by adult
entertainment video production companies, brought against hundreds
or even thousands of anonymous Internet users who are accused of
exchanging video content via BitTorrent and other file-sharing
technologies.217
1.
Personal Jurisdiction, Venue, and Undue Burden
The D.C. Circuit’s opinion in AF Holdings, LLC v. Does 11058, 752 F.3d 990 (D.C. Cir. 2014), was the first federal appellate
decision to squarely address the procedural issues raised by these
so-called “porn copyright troll” cases. The court in AF Holdings
sided with ISPs that had challenged subpoenas issued by the
plaintiff seeking identifying information regarding the holders of
more than 1,000 IP addresses. Because widely available
214. See Sinclair, 596 F. Supp. 2d at 132-33, 134 (also noting lack of personal
jurisdiction); McMann, 460 F. Supp. 2d at 265. A New York court rejected a
pre-suit petition for discovery on the ground that the subpoenaed website itself
was not subject to the jurisdiction of New York courts. See Hall v.
Lipstickalley.com, No. 101342/11 (N.Y. Sup. Ct. N.Y. Cnty. May 5, 2011).
215. See Mech. Dynamics, Inc. & Analysis, Ltd. v. Google, No. 4:11-MC-59 (CEJ) at
2 (E.D. Mo. Mar. 18, 2011).
216. Digital Music News LLC, 171 Cal. Rptr. 3d at 810; see also In re Does 1 & 2,
337 S.W.3d 862 (Tex. 2011) (reversing trial court’s order denying motion to
quash, holding court abused its discretion in failing to comply with Texas Rule
of Civil Procedure 202, which mandates that specific findings be made before
pre-suit discovery is permitted).
217. See, e.g., In re BitTorrent Adult Film Copyright Infringement Cases (In re
BitTorrent), Nos. 11-3995 (DRH)(GRB), 12-1147 (JS)(GRB), 12-1150
(LDW)(GRB), 12-1154 (ADS)(GRB), 2012 WL 1570765, at *1 (E.D.N.Y. May 1,
2012), adopted by 288 F.R.D. 233 (E.D.N.Y. 2012).
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“geolocation” services indicated that only a tiny fraction of those
addresses could be linked to the District of Columbia, the court held
the subpoenas were procedurally improper and should have been
quashed under Federal Rule of Civil Procedure 45(d)(3)(A), which
requires the quashing or modification of subpoenas that impose an
undue burden.218 “If a subpoena compels disclosure of information
that is not properly discoverable,” the court reasoned, “then the
burden it imposes, however slight, is necessarily undue.”219 The
court held that a plaintiff seeking identifying information regarding
John Doe defendants must be able to show a good faith belief that
personal jurisdiction exists and venue is proper, even though those
issues usually are decided on motions to dismiss.220
Before their victory in AF Holdings, ISPs had mixed results in
arguing to district courts that subpoenas to identify their
subscribers in these cases should be quashed because of procedural
and jurisdictional deficiencies in the underlying litigation.221 For
example, in Millennium TGA, Inc. v. Comcast Cable Communications, Inc., the District Court for the District of Columbia granted
Comcast’s request to quash subpoenas seeking to identify 351 of
its subscribers.222 However, the court ordered Comcast to provide
the plaintiff with the city and state where each of those IP
addresses were located so the plaintiff could file infringement suits
in the proper district courts.223 Millennium originally filed the suit
against 939 IP address holders in the District of Columbia,
alleging they had used the BitTorrent file-sharing protocol to share
infringing copies of a pornographic video.224 It then voluntarily
dismissed the case and refiled it in the Southern District of Texas
against only one of the John Doe defendants, naming the 938
others as potential “co-conspirators” and issuing subpoenas to ISPs
for their identifying information for return to the offices of
plaintiff’s attorneys in the District of Columbia.225 This, the court
218.
219.
220.
221.
222.
223.
224.
225.
AF Holdings, LLC, 752 F.3d at 995.
Id.
Id. at 995-96.
See Millennium TGA, Inc., 286 F.R.D. at 13-16; Pac. Century Int’l v. Does 1-31
(31 Does), No. 11 C 9064, 2012 WL 2129003, at *2 (N.D. Ill. June 12, 2012);
Pac. Century Int’l, Ltd. v. Does 1-37 (37 Does), 282 F.R.D. 189, 194-95 (N.D.
Ill. 2012).
286 F.R.D. at 14.
Id. at 15-16.
Id. at 10.
Id. at 9-10.
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said, imposed an undue burden on the putative defendants by
forcing them to litigate in a forum hundreds or thousands of miles
away from their homes; although the single Doe defendant
apparently lived in Texas, the others were from states all over the
country.226 The court held that Comcast had standing to object to the
subpoenas on its subscribers’ behalf and quashed the subpoenas
because of the undue burden to the subscribers.227 In a similar case
in the Northern District of Illinois, the court relied on the
Millennium TGA ruling and quashed subpoenas seeking information
regarding out-of-state Comcast subscribers, but ordered Comcast to
provide plaintiffs with the identifying information of any
subscribers over which the court had territorial jurisdiction.228
2.
Litigation Misconduct
The D.C. Circuit in AF Holdings joined several district courts
that have cited evidence of plaintiffs’ litigation misconduct in
rulings that quashed or dramatically narrowed the scope of
subpoenas seeking to unmask alleged online infringers.229 For
example, federal courts in Massachusetts have quashed subpoenas,
severed defendants, and excoriated plaintiffs for improper tactics
including filing lawsuits without any intent to litigate, solely to
extract settlements;230 including misleading information in
proposed subpoenas;231 and “repeatedly s[aying] one thing and
do[ing] another.”232
226.
227.
228.
229.
Id. at 12-13.
Id. at 15-16.
Pac. Century Int’l LTD, 2012 WL 5877563, at *1-2.
AF Holdings, LLC, 752 F.3d at 997 (plaintiffs “clearly abused the discovery
process”); see also, e.g., In re BitTorrent, 2012 WL 1570765, at *1 (citing
“abusive litigation tactics by plaintiffs” in quashing all but one subpoena in each
of four consolidated cases involving 83 John Doe defendants); Third Degree
Films, Inc. v. Does 1-131, 280 F.R.D. 493, 500 (D. Ariz. 2012) (expressing
agreement with other courts’ concerns that plaintiffs’ “invasive discovery could
lead to abusive settlement practices” and severing and dismissing with prejudice
130 defendants).
230. See, e.g., Combat Zone, Inc. v. Does 1-84, No. 12-30085-MAP, 2013 WL
1092132, at *1 (D. Mass. Feb. 20), adopted by 2013 WL 1092458 (D. Mass.
Mar. 14, 2013).
231. Patrick Collins, Inc. v. Does 1-79, 286 F.R.D. 160, 165-66 (D. Mass. 2012)
(subpoena notices to IP address holders falsely informed recipients that they
were already infringement defendants).
232. Discount Video Ctr., Inc. v. Does 1-29, Nos. 12-10805-NMG, 12-10532-GAO,
12-10758-GAO, 2012 WL 5464175, at *3 (D. Mass. Nov. 7, 2012).
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The Seventh Circuit has, too, dealt defeat to mass infringement
plaintiffs on the ground of litigation misconduct. In Lightspeed
Media Corp. v. Smith, the plaintiffs had filed suit against John
Does it accused of hacking into their pornographic website, served
subpoenas on several ISPs for the Does’ identifying information,
and then added the ISPs as defendants in an amended complaint
when they moved to quash the subpoenas.233 The Seventh Circuit
affirmed an award of sanctions against plaintiffs’ attorneys,
excoriating them for arguing that the ISPs’ motions to quash
subpoenas amounted to conspiring with and aiding and abetting
the alleged hackers.234
And in a highly publicized ruling in 2013, a federal court in
Los Angeles sanctioned attorneys responsible for a large number
of pornography infringement lawsuits against John Doe
defendants, including AF Holdings.235 The judge imposed more
than $80,000 in sanctions and referred the matter to prosecutors,
finding that the attorneys had reaped millions of dollars from
“vexatious litigation designed to coerce settlement” and made
representations to the court that “varied from feigned ignorance to
misstatements to outright lies.”236 Cognizant of such concerns,
many judges have begun requiring that identifying information
produced under such subpoenas be governed by a protective order
and forbidding plaintiffs from obtaining phone numbers and email
addresses of putative defendants.237
233. — F.3d —, 2014 WL 3749128, at *1 (7th Cir. July 31, 2014),
234. Id. at *8-9.
235. Ingenuity 13 LLC v. Doe, No. 2:12-CV-8333-ODW (JCx), 2013 WL 1898633
(C.D. Cal. May 6, 2013).
236. Id. at *2-3.
237. See, e.g., Malibu Media, LLC v. Doe, 8:13-CV-857-T-35TGW, 2013 WL
1620366, at *1 (M.D. Fla. Apr. 15, 2013); Well Go USA, Inc. v. Unknown
Participants in Filesharing Swarm Identified by Hash B7FEC872874D0CC9B13
72ECE5ED07AD7420A3BBB, No. 4:12-CV-00963, 2012 WL 4387420, at *2-5
(S.D. Tex. Sept. 25, 2012); Patrick Collins, Inc. v. Does 1-4, No. 12 Civ.
2962(HB), 2012 WL 2130557, at *1-2 (S.D.N.Y. June 12, 2012); Hard Drive
Prods., Inc. v. Does 1-59, No. H-12-0699, 2012 WL 1096117, at *2-3 (S.D. Tex.
Mar. 30, 2012); Digital Sin, Inc. v. Does 1-176, 279 F.R.D. 239, 242-43
(S.D.N.Y. 2012); Digital Sin, Inc. v. Does 1-5,698, No. C 11-04397 LB, 2011
WL 5362068, at *4 (N.D. Cal. Nov. 4, 2011).
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3.
Joinder
Joinder issues have been among the most controversial in mass
copyright infringement cases. AT&T prevailed on its joinder
challenge in the Eastern District of Missouri to efforts to unmask
subscribers who allegedly infringed an audio software product.238
The court held, in response to AT&T’s objections to subpoenas the
court had authorized, that the 97 alleged infringers were improperly
joined.239 Rather than quashing the subpoenas, the court severed and
dismissed all but one of the Doe defendants, rendering the
subpoenas for the other 96 putative defendants moot.240
But a court in the Northern District of Illinois rejected
Comcast’s similar argument that the defendants were misjoined, as
well as its argument that providing the Does’ identities to the
plaintiff could subject the defendants to abusive litigation or
extortionate settlement tactics.241
One reason for dramatically different outcomes on joinder
challenges is due to differing interpretations of the jurisdictional
significance of the fact that the commonly-used BitTorrent filesharing protocol allows a “swarm” of users to share pieces of the
file being downloaded. Courts thus “have struggled to uniformly
apply [joinder] case law to actions involving the use of BitTorrent
technology,” and their opinions have gravitated toward opposite
poles.242
The D.C. Circuit in AF Holdings came down firmly against
so-called “swarm joinder,” holding that “the mere fact that two
defendants accessed the same file through BitTorrent provides an
insufficient basis for joinder.”243 The court reasoned that only
those users who were members of the same “swarm” at the same
time could possibly be properly joined as participants in the same
transaction or occurrence.244 Anti-joinder courts also have
observed that defendants are severely prejudiced by being joined
238. reFX Audio v. Does 1-97, No. 4:13-CV-00409 (CEJ), 2013 WL 3766571, at *5
(E.D. Mo. July 16, 2013).
239. Id. at *2-4.
240. Id. at *5.
241. 31 Does, 2012 WL 2129003, at *2-3.
242. Liberty Media Holdings, LLC v. BitTorrent Swarm, 277 F.R.D. 669, 671 (S.D.
Fla. 2011).
243. AF Holdings, 752 F.3d at 998.
244. Id.
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with large numbers of co-defendants who are likely to have widely
varying defenses.245
District courts that turned aside joinder challenges have held
that “swarm joinder” is appropriate because involvement in a
swarm download makes the defendants participants in the same
series of transactions and results in common questions of fact and
law involving the use of file sharing technology.246 Although the
issue is still hotly contested, the trend appears to be in favor of
severance; as one court observed, denying swarm joinder is “the
emerging majority rule in BitTorrent cases.”247
4.
Judicial Economy
The federal district courts overseeing mass infringement cases
are similarly at opposite poles on the issue of judicial economy.
Some have held that courts and defendants would be burdened by
the need for hundreds of fact-specific motions from individual
defendants should such cases proceed.248 Conversely, others have
held that the interests of the plaintiffs, the justice system, and even
the defendants would be served by allowing the mass infringement
cases to proceed rather than requiring the copyright holders to file
hundreds of individual lawsuits.249
*****
245. See, e.g., K-Beech, Inc. v. Does 1-41, No. V-11-46, 2012 WL 773683, at *4-5
(S.D. Tex. Mar. 8, 2012); Liberty Media Holdings, LLC, 277 F.R.D. at 676.
246. See, e.g., Patrick Collins, Inc. v. Does 1-15, No. 11-cv-02164 (CMA) (MJW),
2012 WL 415436, at *2 (D. Colo. Feb. 8, 2012).
247. Third Degree Films, Inc. v. Does 1-72, No. 12-cv-14106, 2013 WL 1164024, at
*5 (E.D. Mich. Mar. 18) (citation and internal quotation marks omitted), adopted
by 2013 WL 4416159 (E.D. Mich. Aug. 15, 2013).
248. See, e.g., Lightspeed Media Corp. v. Does 1-1000, No. 10 C 5604, 2011 WL
8179131, at *2 (N.D. Ill. Mar. 31, 2011) (“[T]his court could be faced with
hundreds of factually unique motions to dismiss, quash or sever from potential
defendants located all over the country.”); Nu Image Inc. v. Does 1-23,322, 799
F. Supp. 2d 34, 42 (D.D.C. 2011) (case involving 23,322 potential defendants
“presents multiple case management problems for the Court”).
249. See, e.g., Call of the Wild Movie, LLC v. Does 1-1,062, 770 F. Supp. 2d 332, 344
(D.D.C. 2011) (severing cases would force plaintiffs “to file 5,583 separate
lawsuits,” which would “limit their ability to protect their legal rights,” and
joined defendants could benefit from seeing defenses raised by other
defendants); First Time Videos, LLC, 276 F.R.D. at 253 (same).
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Whether AF Holdings will resolve the split among district
courts nationwide regarding at least some of the procedural issues
surrounding mass infringement lawsuits remains to be seen.
However, even before the D.C. Circuit ruled, the emerging trend
appeared to be greater skepticism of these plaintiffs’ claims and
more willingness to issue protective orders, quash subpoenas, sever
defendants, and dismiss cases. In the words of one court, such
plaintiffs are clearly facing a “stiffening judicial headwind.”250
D. Other Laws Forbidding Disclosure of a Speaker’s Identity
The Torture Victim Protection Act (“TVPA”) and other laws may
impose an obligation on the recipient of a subpoena not to disclose
the identity of the anonymous speaker. For example, in Xiaoning v.
Yahoo! Inc., two Chinese dissidents sued Yahoo pursuant to the
TVPA, alleging that Yahoo’s disclosure of their identifying
information to the Chinese government aided or abetted torture and
other injuries inflicted on the dissidents.251 In another case, a
naturalized US citizen who emigrated from Thailand sued a Canadian
ISP for revealing to the Thai government his IP address and two
email addresses. Claiming that the revelations subjected him to
threats and criminal prosecution in Thailand, the man sued the ISP
for negligence and other violations of California law.252
250. 37 Does, 282 F.R.D. at 193-94.
251. See No. 4:07-CV-02151-CW (N.D. Cal. filed Apr. 18, 2007), complaint available
at
http://docs.justia.com/cases/federal/district-courts/california/candce/4:
2007cv02151/191339/51; Dan Nystedt, Yahoo Sued Again by Chinese Dissidents,
WASH. POST (Feb. 29, 2008, 9:10 AM), http://www.washingtonpost.com/wpdyn/content/article/2008/02/29/AR2008022901240.html. The case was settled in
November 2007. But cf. Zheng Cunzhu v. Yahoo! Inc., No. C-08-1068 MMC
(N.D. Cal. Dec. 2, 2009) (dismissing claims that Yahoo violated the Electronic
Communications Privacy Act by disclosing to the Chinese government Internet
user information about certain Chinese dissidents and reasoning that the Act did
not apply extraterritorially).
252. See Mike Masnick, ISP Sued for Revealing Info on US-Based Critic of Thai
Laws, TECHDIRT (Sept. 1, 2011, 7:20 A.M.), http://www.techdirt.com/articles/
20110831/02164215747/isp-sued-revealing-info-us-based-critic-thai-laws.shtml.
In Chai v. Netfirms.com Inc., the ISP filed a motion to dismiss on the ground that
the statute of limitations had expired. The court granted that motion and the case
was dismissed with prejudice. No. 2:11-cv-06988-GHK-CW (C.D. Cal. Mar. 30,
2012) (dkt. 32).
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E. Technological Obstacles to Identifying
an Anonymous Poster
In seeking the identity of an anonymous poster, a subpoenaing
party often proceeds down a path that begins with a search for
registration or similar information provided to a website or online
service—data such as a name, physical address, telephone number, or
email address—as well as for IP and MAC addresses and other digital
breadcrumbs that the poster unwittingly left in the possession of third
parties. There is no guarantee, however, that the information collected
along this journey will point definitively to the person sought.253
First, the data itself can be of limited use. An IP address—an
Internet protocol address—is a number assigned to an Internet
connection, typically a wireless router or local area network, at a
specific date and time.254 By itself, the IP address cannot reveal the
individual who performed any particular activity through that
connection. However, the IP address does identify the Internet Service
Provider (ISP) associated with that IP address at a particular time, and
a subpoena to that ISP typically can reveal the name of the subscriber
then assigned to the address. Because the subscriber—the person
paying for the Internet service—may not be the person who posted,255 a
subpoena will also seek additional identifying information, including
253. See, e.g., In re BitTorrent, 2012 WL 1570765, at *3-5 (holding that IP addresses
alone are insufficient to identify a person responsible for activity originating
from those addresses); London-Sire Records, Inc., No. 1:04-cv-12434 (D. Mass.
Nov. 24, 2008) (quashing subpoena and holding that IP address was insufficient
to identify alleged infringers with reasonable degree of technical certainty).
Although contained in a sealed letter and thus not available in the public record,
the arguments advanced by the subpoena recipient in London-Sire Records are
discussed by Wendy Davis in Judge Ruling Protects IP Address Identities,
MEDIAPOST (Dec. 1, 2008, 7:30 AM), http://www.mediapost.com/publications/
article/95689/judge-ruling-protects-ip-address-identities.html#axzz2eLBIyeqd.
See also Bennett Haselton, Virginia High Court Wrong About IP Addresses,
SLASHDOT (Oct. 1, 2008, 12:00 PM), http://news.slashdot.org/article.pl?sid=08/
10/01/1526235&from=rss (describing ways in which an Internet user can render
an IP address insufficient to identify her).
254. An IP address can be “static,” meaning that the server assigns the same number
each time a connection is established, or “dynamic,” meaning that a new number
is assigned each time.
255. As one court aptly analogized, just as a telephone number is not necessarily
indicative of the person using a phone at any given time, an IP address may bear
little relation to the anonymous speaker; in fact, it may even implicate an
innocent third party. Columbia Pictures Indus. v. Bunnell, No. CV 061093FMCJCX, 2007 WL 2080419, at *2 n.7 (C.D. Cal. May 29, 2007); see also
In re BitTorrent, 2012 WL 1570765, at *3.
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the MAC address—the media access control address—of the hardware
used by the poster. A MAC address is a unique identifier installed by
the manufacturer on a specific device with an Internet connection, such
as a laptop or tablet. Although the MAC address can identify the
device used by the poster, it also may not lead to the poster if a large
number of people had access to the device, such as would be the case if
the device were available to the public in an Internet café or library.
Second, the anonymous poster may make efforts to obscure her
identity. She may simply provide false registration information or
create a toss-away email or Facebook account to distance herself from
her online activity. However, she may also take more sophisticated
steps, such as using virtual private networks (VPNs),256 proxy servers,257
MAC spoofing,258 and similar technological tools. A popular example
is Tor, “The Onion Router”—an identity-obscuring network of
virtual tunnels originally designed by the U.S. military.259
Third, some website operators, such as WikiLeaks, make clear
that they will go to great lengths to protect contributors, such as by
“maintain[ing] . . . servers at undisclosed locations, pass[ing]
communication through protective jurisdictions, keep[ing] no traffic
logs, and us[ing] military-grade encryption.”260 Other operators have
256. See, e.g., Eric Geier, How (and Why) to Set Up a VPN Today, PCWORLD (Mar.
19, 2013, 3:01 AM), http://www.pcworld.com/article/2030763/how-and-why-toset-up-a-vpn-today.html; Alan Henry, Why You Should Start Using a VPN (and
How to Choose the Best One for Your Needs), LIFEHACKER (Sept. 5, 2012, 8:00
AM),
http://lifehacker.com/5940565/why-you-should-start-using-a-vpn-andhow-to-choose-the-best-one-for-your-needs.
257. For detailed information on the various types and uses of proxy servers, see
Proxy Server, WIKIPEDIA, http://en.wikipedia.org/wiki/Proxy_server (last
modified Sept. 1, 2014, 1:52 PM).
258. Shreyas Zare, Why You Need tTo Change [A] MAC Address, TECHNITUM
(June 7, 2011, 11:42 PM), http://blog.technitium.com/2011/06/why-you-need-tochange-mac-address.html; see also Detecting and Preventing MAC Spoofing,
http://www.infoexpress.com/?q=content/practical/142 (last visited Sept. 4, 2014).
259. For a detailed description of the Tor software and services, see https://www.
torproject.org/about/overview.html.en (last visited Sept. 4, 2014).
260. Noam Cohen, Calling on Leakers to Help Document Local Misdeeds, N.Y.
TIMES (Dec. 21, 2009), http://www.nytimes.com/2009/12/21/business/media/
21leaks.html?_r=0 (quoting description provided by the WikiLeaks website)
(internal quotation marks omitted). Other WikiLeaks-like projects have not made
the same promises. See, e.g., Terms of Use, AL JAZEERA INVESTIGATIONS http://
transparency.aljazeera.net/en/20123129130736452.html (last updated Mar. 12,
2012) (explaining when user data may be disclosed).
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been known to purge their data regularly—or even to shut down—
prior to receiving a request for server data.261
F.
Limited Disclosures
In some instances, courts have used “attorneys’ eyes only” orders
to permit defendant online speakers to remain anonymous even where
the courts determined that the plaintiffs had met their burdens to
overcome motions to quash subpoenas for the defendants’ identifying
information.262 For example, in Deer Consumer Products, Inc. v. Little,
even though a New York trial court held that a defamation defendant
blogger did not have a First Amendment right to shield his identity, the
court restricted disclosure of his identity to the plaintiff’s lawyers, and
only for the purpose of jurisdictional discovery.263 The court credited
the blogger’s affidavit citing fears for his and his associates’ personal
safety because of previous threats and violent incidents stemming from
his criticism of other companies, as well as general “abuses of official
authority and lack of rule of law” in China, where he said he was
located.264
Similarly, in Independent Business Owners Association International v. Woodward, even though a Michigan court held that an
anonymous speaker was entitled to less First Amendment protection
because his speech was “commercial” in nature, only the parties’
attorneys were permitted to attend and review a transcript of a
deposition of one of the defendant company’s former employees
where he would be asked to reveal the speakers’ identities.265
261. Betsy Isaacson, Silent Circle Shuts Down Silent Mail, Marking Yet Another
Encrypted Email Service to Bite the Dust, HUFFINGTON POST (Aug. 9, 2013),
http://www.huffingtonpost.com/2013/08/09/silent-circle-shutting-down-encriptedemail_n_3732779.html (reporting that Silent Mail and Lavabit—encrypted email
services—shut down in the same week, both citing concerns that they would not
be able to protect users from government subpoenas or surveillance efforts).
262. For an example of a remedy protecting anonymous speech rights while at the
same time permitting government enforcement of a subpoena in a criminal case,
see supra discussion of In re Grand Jury Subpoena Dated August 7, 2006, 246
F.R.D. 570 at notes 171-172 and accompanying text.
263. 938 N.Y.S.2d 767, 782-83 (N.Y. Sup. Ct. N.Y. Cnty. 2012).
264. Id. at 772.
265. No. 07-08513-CZ (Mich. Cir. Ct. Kent Cnty. May 11, 2010).
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VI.
PRACTICE POINTERS: HOW TO MINIMIZE THE RISK OF
LIABILITY FOR SUBPOENA RESPONSES
A company that receives a subpoena seeking information about the
identity of an anonymous speaker must decide what steps to take in
response. Given their institutional missions, many news organizations
that receive such subpoenas stand up for their readers and viewers’ rights
to speak anonymously and move to quash them on these and other
grounds. Others, and often ISPs and search engines, take a more passive
approach, notifying the user of the subpoena and explaining that the
company will comply with it unless the user formally invokes his or her
own rights with the court by a particular date.
Some subpoena recipients take what might be viewed as a moderate
approach to protecting anonymity rights, choosing neither to comply
with the subpoena voluntarily nor to move to quash it. For example, the
Philadelphia Inquirer took this approach with respect to a subpoena for
identifying information about a commenter to its website. Upon being
advised by the Inquirer of the four-factor Dendrite-style test adopted in
Pilchesky v. Gatelli, 12 A.3d 430 (Pa. Super. Ct. 2011), the subpoenaing
party filed a petition for disclosure with the court, the court required the
newspaper to give notice to the anonymous poster, and the poster filed a
motion to quash the subpoena. The court ordered disclosure after hearing
argument from both the subpoenaing party and the anonymous poster.266
The downside to this approach is that the speaker is typically less wellequipped than the corporate subpoena recipient to articulate the
important First Amendment interests at stake. But it may provide a
palatable solution to news organizations that do not have the resources to
fight such subpoenas.267
Although the appropriate response to a subpoena seeking information
about the identity of an anonymous speaker will vary from case to case,
266. See Online Commenter Can’t Remain Anonymous, Judge Says, MORNING CALL
(Mar. 8, 2014), www.mcall.com/news/breaking/mc-internet-commenters-outed20140308,0,211728.story (additional information obtained by authors).
267. In this regard, it is worth noting that there appear to be no published decisions in
which a court has awarded attorneys’ fees to a party successfully moving to
quash a subpoena. The Ninth Circuit, when faced with the question, held that a
subpoena recipient that prevails on a motion to quash generally cannot recover
its attorneys’ fees as a sanction under Federal Rule of Civil Procedure 45(c)(1).
See Mount Hope Church v. Bash Back!, 705 F.3d 418, 429 (9th Cir. 2012)
(“[T]he mere need to respond to an opponent’s advocacy in our civil justice
system should [not] be viewed as unduly burdensome when legal arguments are
advanced in good faith.”).
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subpoena recipients should consider taking the following steps to
minimize legal risk associated with such responses.
A. Preserve the Information Sought
The recipient should immediately preserve the electronic and
other information sought by a subpoena, including electronic
information that ordinarily would be stored only temporarily.268 The
failure to do so may result in sanctions for spoliation.269
B. Notify the Anonymous Speaker
The subpoena recipient should consider voluntarily notifying the
anonymous poster of the existence of the subpoena.270 The poster has
the greatest interest in protecting her right to anonymity, and
notification will provide her with an opportunity to respond
directly.271 Such notice may also head off a potential claim by the
anonymous poster that the subpoena recipient’s release of her identity
breached a contract or resulted in reputational or other injury.272 The
268. See, e.g., Columbia Pictures Indus., 2007 WL 2080419, at *3, *7-8, *14
(ordering preservation and production of server log data that would, in the
ordinary course, have been erased from the defendants’ website server after
approximately six hours).
269. See id. at *13-14 (declining to impose sanctions in the absence of precedent
imposing duty to preserve information temporarily stored in RAM). As courts
and lawyers gain more familiarity with e-discovery obligations, courts will likely
expect greater preservation efforts by sophisticated parties receiving subpoenas.
270. In some circumstances in which the subpoena recipient intends to file a motion
to quash, it may be more appropriate simply to urge the court to adopt a
procedure to notify the anonymous posters of their rights and permit them to
assert those rights in the event the court is inclined to deny the motion to quash.
See, e.g., Bizub v. Paterson, No. 2007CV1960 (Colo. Dist. Ct. El Paso Cnty.
motion filed May 27, 2008) (where plaintiff issued overbroad subpoena seeking
38 individuals’ identities, newspaper moved to quash and urged court to require
notification only in event motion was to be denied; court quashed subpoena
rendering notification unnecessary).
271. Where appropriate, the Doe defendant or witness can be referred to an
organization that may provide or help obtain representation, such as the Digital
Media Law Project (www.dmlp.org); Electronic Frontier Foundation (www.eff.
org); Public Citizen (www.citizen.org); or the American Civil Liberties Union
(www.aclu.org). At least one court has shown a willingness to appoint pro bono
counsel. See, e.g., Doe I v. Individuals, 561 F. Supp. 2d at 252.
272. See Gallucci v. N.J. On-Line, LLC, No. L-001107-07 (N.J. Super. Ct., filed Feb.
13, 2007) (anonymous poster, who alleged his identifying information was
revealed without notice by website in response to subpoena, sued website but
later dismissed action); see also Jessup-Morgan v. AOL, Inc., 20 F. Supp. 2d
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Virginia General Assembly has created a notification form for use in
such cases, as has at least one federal court.273
C. Review Terms of Service and Privacy Policies
Terms of service, privacy policies, and other agreements
governing the disclosure of user information should be evaluated and
updated with potential subpoenas for anonymous website posters in
mind, as such agreements may work against a website operator’s
effort to quash subpoenas. Subpoenaing parties often point to these
policies as evidence that the anonymous speaker has no reasonable
expectation of anonymity.274 Indeed, one court relied on the language in
a website’s terms of service to deny shield law protection to an
anonymous poster.275 At a minimum, the agreements should make
clear that the website operator will reveal a poster’s identifying
information if required to do so by court order.276 Whatever these
agreements provide, the website operator should comply with them,
including moving to quash if necessary, or face the real possibility of
being sued by an anonymous poster for breach of contract.277
273.
274.
275.
276.
277.
1105 (E.D. Mich. 1998) (awarding summary judgment in favor of defendant on
one claim and dismissing all others in action for disclosure of identity
information pursuant to subpoena without notice to anonymous speaker).
See VA. CODE ANN. § 8.01-407.1(B); London-Sire Records, Inc., 542 F. Supp.
2d at 181-82 (containing, in Appendix A, a court-directed notice providing file
sharers with information about their rights and instructions on how to secure
counsel).
See supra notes 132-134 and accompanying text.
See Clem, 08-CI-1296, at 3 (Ky. Cir. Ct. Madison Cnty. Mar. 25, 2010); see also
supra notes 205-206 and accompanying text.
Those websites and apps that expressly market themselves as providing a venue
for users to share information anonymously should be clear in their terms of
service about any circumstances under which a user’s identifying information
may be shared. See, e.g., Andy Greenberg, Whistleblowers Beware: Apps Like
Whisper and Secret Will Rat You Out, WIRED (May 16, 2014, 3:45 PM),
http://www.wired.com/2014/05/whistleblowers-beware/ (reporting that some
anonymity apps track user information and will reveal it pursuant to law).
See, e.g., Wargo v. Lavandeira, No. 1:08-cv-02035-LW (N.D. Ohio Oct. 3,
2008) (dkt. 15) (dismissing for lack of personal jurisdiction an action against a
blogger, Perez Hilton, that sought $25 million in damages for publishing an
anonymous poster’s name and work email address, along with the poster’s
previously anonymous comments, in violation of the blog’s privacy notice),
subsequently arbitrated, JAMS Arb. No. 1220041183 (Mar. 24, 2013) (Neal,
Arb.) (awarding judgment to blogger), available at http://www.scribd.com/
doc/134974438/wargo; compare Meyer v. Christie, No. 07-2230-JWL, 2007 WL
3120695, at *4 (D. Kan. Oct. 24, 2007) (denying motion to dismiss breach of
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VII. CONCLUSION
Although the law governing protections for anonymous online speech is
now fairly well developed, courts continue to struggle with how much
constitutional protection to afford anonymous speakers in new factual
contexts.
Courts generally grant expressive speech by anonymous speakers the
highest level of protection, whereas they allow individuals involved in
allegedly infringing speech to be unmasked after satisfaction of only
minimal hurdles. An increasing number of courts are affording less
protection for expressive speech when it is criticism of business activities,
when the speaker is not speaking to a wide audience, or when the speaker
engages in unlawful activity in aid of publishing his or her speech.
The 2TheMart test remains the primary test designed to apply where
the anonymous poster is sought as a witness rather than as a defendant.
Unlike Doe defendants, nonparty speakers are not alleged to have caused
injury to a plaintiff. It would stand to reason, therefore, that it should be
at least as difficult to revoke nonparties’ anonymity rights as it is to
revoke those of Doe defendants. But, ironically, in contrast to the
standards that have evolved for Doe defendant subpoenas, the 2TheMart
test does not require a subpoenaing plaintiff to support the merits of its
claim. Because of the relatively small number of published cases
involving third-party anonymous speakers, the opportunity remains for
additional burdens to be added to this test, and practitioners handling
such subpoenas should consider advancing elements of other tests that
have been adopted in the years since 2TheMart was decided.
Many, but not all, courts faced with the question are willing to
permit media companies to assert the reporter’s privilege in this context,
which often but not always results in the quashing of a subpoena for an
anonymous speaker’s identity. Media companies that receive subpoenas
for anonymous speakers’ identities and decide to move to quash such
subpoenas should therefore consider whether a state shield law might
successfully be invoked.
Finally, standards for protection of anonymous speech in the criminal
and administrative contexts have begun to emerge. Although the
“compelling interest/sufficient nexus” standard applicable to government
contract claim and finding that “bank’s privacy policy constituted part of
[plaintiff’s] bargained-for exchange with the bank”), with Dyer v. Northwest
Airlines Corps., 334 F. Supp. 2d 1196, 1200 (D.N.D. 2004) (granting motion to
dismiss breach of contract claim because, inter alia, “broad statements of
company policy do not generally give rise to contract claims”).
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subpoenas in criminal proceedings provides some protection, not surprisingly, courts are generally more solicitous of prosecutors’ subpoenas
seeking anonymous speakers’ identities than they are of such subpoenas
brought in civil cases. The same is true with subpoenas issued by criminal
defendants, even though the test thus far applied to such subpoenas is
different.
VIII. CASE SUMMARIES
The Right to Speak Anonymously:
Select Supreme Court Cases

Doe No. 1 v. Reed, 561 U.S. 186 (2010). The Supreme Court
implicitly concluded that the right to anonymous speech was not
implicated where petition signers challenged the constitutionality
of the application of the Washington open records law to their
names and addresses, collected by the state during the petition
process. In his concurrence, and although agreeing that the law
survived a facial challenge, Justice Scalia argued that the case
should have been framed in terms of the right to anonymity. He
nonetheless asserted that this right did not apply to one’s
participation in legislative and electoral activities given the long
national tradition of these functions being exercised in public (and
given his belief that McIntyre v. Ohio Elections Commission, 514
U.S. 334 (1995), was wrongly decided). In his concurrence, Justice
Stevens disagreed with Justice Scalia’s construction of the case
and argued that the Court’s decision in McIntyre “posited no . . .
freewheeling right” to anonymous speech (and that the First
Amendment only protects “the right to speak, not . . . the right to
speak anonymously”).

Watchtower Bible & Tract Society of New York, Inc. v. Village of
Stratton, 536 U.S. 150 (2002) (holding that a town ordinance that
criminally punishes door-to-door advocacy without a permit is
unconstitutionally overbroad because, inter alia, it requires
speakers “to forgo their right to speak anonymously”).

Buckley v. American Constitutional Law Foundation, Inc., 525
U.S. 182 (1999) (invalidating a Colorado law requiring that initiative petition circulators wear a badge identifying the circulator’s
name as a violation of the First Amendment).
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
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)
(finding, in a case examining the constitutionality of portions of
the Communications Decency Act, that, in contrast to the
established bases for regulation of the broadcast industry, Supreme
Court precedent “provide[s] no basis for qualifying the level of
First Amendment scrutiny that should be applied to [the
Internet]”).

McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995)
(holding that a ban on distributing anonymous campaign literature violates the First Amendment, explaining that “[a]nonymity
is a shield from the tyranny of the majority”).

Virginia v. American Booksellers Ass’n, 484 U.S. 383 (1988)
(holding that booksellers have standing to challenge a Virginia
statute banning the display of sexually explicit material accessible to juveniles as an infringement of the First Amendment rights
of their customers).

Talley v. California, 362 U.S. 60 (1960) (declaring invalid an
ordinance that prohibits the distribution of handbills that fail to
identify the name and address of those responsible for their
creation and distribution).

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (finding
that association has standing to assert constitutional rights of its
members and holding that compelled disclosure of association’s
membership list constitutes a denial of members’ rights to pursue
lawful private interests privately and to associate freely with
others).
Unmasking Anonymous Online Speakers:
Standards Developed by the Courts
SEMINAL DECISIONS
The following are the leading cases addressing the standards by
which courts will permit discovery of an anonymous speaker’s
identity. They are summarized here and referenced by shorthand in
the additional case law discussed below.
The Summary Judgment / Prima Facie Case Tests

Doe v. Cahill, 884 A.2d 451 (Del. 2005) (“Cahill”). A town
council member filed a defamation action against an
anonymous poster who criticized plaintiff’s performance in
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office on a website welcoming comments regarding public
issues. The court reversed the denial of the Doe defendant’s
motion for protective order and ordered the case dismissed
on the ground that no reasonable person could have interpreted the comments as being anything other than opinion.
The court held that, “before a defamation plaintiff can obtain
the identity of an anonymous defendant through the
compulsory discovery process he must”—through “a
verified complaint or affidavits”—“support his defamation
claim with facts sufficient to defeat a summary judgment
motion,” except that the plaintiff need not produce evidence
on an element that is not within his or her control (such as
actual malice). (It is not clear whether the court intended to
limit its holding to cases involving public figure plaintiffs
and core political speech.) The court also held that the
plaintiff must “undertake efforts to notify the anonymous
poster” and “withhold action to afford the anonymous defendant a reasonable opportunity to file and serve opposition to
the discovery request.”

Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756
(N.J. Super. Ct. App. Div. 2001) (“Dendrite”). In a
defamation action against an anonymous poster to a Yahoo
bulletin board, the court affirmed the denial of plaintiff’s
request for expedited discovery to ascertain the Doe
defendant’s identity. The court held that trial courts, “when
faced with an application by a plaintiff for expedited
discovery seeking an order compelling an ISP to . . . disclose
the identity of anonymous Internet posters who are sued,”
should follow four steps: (1) “require the plaintiff to undertake efforts to notify the anonymous posters . . . and
withhold action to afford [them] a reasonable opportunity to
file and serve opposition to the application”; (2) “require the
plaintiff to identify and set forth the exact statements … that
plaintiff alleges constitute actionable speech”; (3) review
“all information provided to the court … to determine
whether plaintiff has set forth a prima facie cause of action
against [the posters],” which requires plaintiff to “produce
sufficient evidence supporting each element of its cause of
action, on a prima facie basis”; and (4) if a prima facie case
is presented, “balance the defendant’s First Amendment
right of anonymous free speech against the strength of the
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prima facie case and the necessity for the disclosure of the
anonymous defendant’s identity to allow the plaintiff to
properly proceed.”
The Motion to Dismiss Tests

Sony Music Entertainment Inc. v. Does 1-40, 326 F. Supp.
2d 556 (S.D.N.Y. 2004) (“Sony”). In a copyright
infringement action for the downloading and distribution of
music via peer-to-peer file copying networks, the plaintiffs
subpoenaed an ISP for the Doe defendants’ identities, and
the ISP notified the anonymous defendants. After concluding
that one who engages in such file sharing “is not engaging in
true expression,” the court denied four Doe defendants’
motions to quash after it “considered a variety of factors to
weigh the need for disclosure against First Amendment
interests”: (1) “a concrete showing of a prima facie claim of
actionable harm”; (2) the “specificity of the discovery
request”; (3) the “absence of alternative means to obtain the
subpoenaed information”; (4) “a central need for the
subpoenaed information to advance the claim”; and (5) “the
party’s expectation of privacy.”

Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573
(N.D. Cal. 1999) (“Seescandy”). Assignee of See’s Candy’s
trademarks sued various entities for trademark infringement
and other business torts and moved for a temporary restraining order even though it had not served the defendants, which
it had been unable to locate. The court denied the motion as
futile, gave the plaintiff two weeks to submit a proper request
for discovery process, and held that the following “limiting
principals [sic] . . . apply to the determination of whether
discovery to uncover the identity of a defendant is
warranted:” (1) “the plaintiff should identify the missing party
with sufficient specificity such that the Court can determine
that defendant is a real person or entity who could be sued in
federal court”; (2) “the party should identify all previous steps
taken to locate the elusive defendant”; (3) “the plaintiff
should establish to the Court’s satisfaction that plaintiff’s suit
against defendant could withstand a motion to dismiss”;
(4) the plaintiff must make some showing “that the discovery
is aimed at revealing specific identifying features of the
person or entity who committed that act”; and (5) the plaintiff
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“should file a request for discovery with the Court, along with
a statement of reasons justifying the specific discovery
requested as well as identification of a limited number of
persons or entities on whom discovery process might be
served and for which there is a reasonable likelihood that the
discovery process will lead to identifying information about
defendant that would make service of process possible.”
Other courts have noted that, although Seescandy references a
motion to dismiss standard, the actual standard the court
applied there was much higher, as the court required “some
showing that an act giving rise to civil liability actually
occurred and that the discovery is aimed at revealing specific
identifying features of the person or entity who committed the
act.”
The Third-Party Witnesses Test

Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088 (W.D.
Wash. 2001) (“2TheMart”). The defendant in a shareholder
derivative action served a subpoena on an ISP, seeking the
identities of persons who had anonymously posted comments
to a bulletin board hosted by the ISP. Upon notice from the
ISP, one anonymous poster filed a motion to quash. The court
held that the standard for disclosure of non-parties’ identities
must be higher than that for parties to the suit, and that it must
determine whether: “(1) the subpoena seeking the information
was issued in good faith and not for any improper purpose,
(2) the information sought relates to a core claim or defense,
(3) the identifying information is directly and materially
relevant to that claim or defense, and (4) information
sufficient to establish or to disprove that claim or defense is
unavailable from any other source.” The court quashed the
subpoena.
FEDERAL APPELLATE DECISIONS
First Circuit

Universal Communication Systems, Inc. v. Lycos, Inc., 478
F.3d 413 (1st Cir. 2007). A website operator’s legal action to
protect its users’ anonymity does not constitute inducement of
illegal activity so as to void the site’s immunity for the
postings of third-party content under Section 230 of the
Communications Decency Act, the First Circuit held.
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Plaintiffs Universal Communication Systems and its CEO
sued Lycos and several John Doe defendants over postings on
Lycos’ RagingBull.com website that allegedly disparaged
UCS. Although the plaintiffs attempted to pierce Lycos’
Section 230 immunity through “artful pleading,” the district
court and the First Circuit held that Lycos was not liable for
any allegedly unlawful comments posted on its site. The
plaintiffs had argued that Lycos voided its immunity by
taking legal actions, such as moving to quash subpoenas and
to intervene in lawsuits, to protect its users’ anonymity. The
First Circuit disagreed, holding that “[a]ctions taken to protect
subscribers’ legal rights, however, cannot be construed as
inducement of unlawful activity, and UCS does not allege that
Lycos lacked a reasonable basis for its legal activities.” The
appeals court also rejected UCS’s other attempts to overcome
Section 230, including their contention that allowing
individual users to create multiple, pseudonymous screen
names vitiated Lycos’ immunity.
Second Circuit

Arista Records, LLC v. Doe 3, 604 F.3d 110 (2d Cir. 2010),
aff’g Arista Records LLC v. Does 1-16, No. 1:08-CV-765
(GTS/RFT), 2009 WL 414060 (N.D.N.Y. Feb. 18, 2009)
(Treece, Mag. J.). In this copyright infringement suit brought
by recording companies against anonymous individuals
using peer-to-peer file sharing software, the Second Circuit
concluded that the Sony test, including its requirement that a
plaintiff make a “concrete . . . showing of a prima facie
claim of actionable harm,” constitutes “an appropriate
general standard for determining whether a motion to quash,
to preserve the objecting party’s anonymity, should be
granted.” The court affirmed the denial of the Doe
defendant’s motion to quash, concluding that plaintiffs
satisfied the “concrete showing” requirement by providing
“factual detail in the Complaint [which] plainly states
copyright infringement claims that are plausible,” together
with an exhibit and declaration. (The court expressly noted
that it remained an open question whether a well pleaded
complaint, unaccompanied by any evidentiary showing,
would fulfill the Sony standard.)
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Fifth Circuit

United States v. Jackson, No. 13-131, 2014 WL 585412
(E.D. La. Feb. 14, 2014), aff’d, 2014 WL 1251069 (E.D. La.
Mar. 25, 2014), and mandamus denied, In re TimesPicayune, L.L.C., 561 F. App’x 402 (5th Cir. Apr. 8, 2014)
(per curiam) (unpublished). The Fifth Circuit denied a
newspaper’s petition for mandamus seeking reversal of a
trial court order requiring the production for in camera
review of identifying information about two commenters to
the newspaper’s website. In the underlying action, former
New Orleans city housing official Stacey Jackson was
charged with corruption-related offenses and sought to
demonstrate that the prosecutors engaged in misconduct by
anonymously posting on NOLA.com, The Times-Picayune
website, proclamations of Jackson’s presumed guilt and
predicted conviction. The district court denied the
newspaper’s motion to quash Jackson’s subpoena seeking
two anonymous commenters’ identities, finding, based
largely on its review of a U.S. Justice Department investigation into prosecutorial misconduct by the local United States
Attorneys’ Office in connection with several other
prosecutions, that Jackson “has at least a colorable claim of
prosecutorial misconduct, that the identity of these two
commenters is relevant to it, and that she cannot adequately
prepare that defense without access to those identities,”
citing the standard for evaluating subpoenas in criminal
cases set forth in United States v. Nixon, 418 U.S. 683
(1974). The Times-Picayune subsequently noticed a direct
appeal of the district court order while also filing a petition
for a writ of mandamus to the Court of Appeals for the Fifth
Circuit and motions to expedite the appeal and stay the
court’s order pending appeal. In its petition, the newspaper
argued that the trial court’s order, which noted that
“limitations on the right to anonymous speech apply even
more stringently” to federal prosecutors and representatives
of the government in the criminal justice process, did not
sufficiently protect the anonymous commenters’ First
Amendment rights. The Fifth Circuit denied the mandamus
petition in a per curiam opinion, holding that the trial court’s
balancing of the commenter’s anonymous speech rights
against the defendant’s fair trial rights was not “clearly and
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indisputably erroneous.” In separate orders, the Fifth Circuit
granted the motion to expedite the appeal, which is pending
as of publication, and denied the motion to stay the district
court order, following which The Times-Picayune made its
in camera disclosure.
Seventh Circuit

Lightspeed Media Corp. v. Smith, — F.3d —, 2014 WL
3749128 (7th Cir. July 31, 2014). The Seventh Circuit
upheld an award of attorneys’ fees as a sanction against the
plaintiff for bringing frivolous claims against several ISPs
that had challenged the plaintiff’s subpoenas seeking
identifying information about alleged online copyright
infringers. The appellate court agreed with the trial court
that plaintiff had filed facially frivolous claims, based solely
on the ISPs’ opposition to its subpoenas in an underlying
copyright infringement action: (1) for alleged violation of
the Computer Fraud and Abuse Act, 18 U.S.C. §§ 1030 and
1030(g), for failing to prevent alleged “hacking” of
plaintiff’s website; (2) for unjust enrichment on the theory
that the ISPs collected fees from subscribers that engaged in
hacking; (3) for civil conspiracy, on the theory that the ISPs
conspired with the alleged hackers by opposing plaintiff’s
subpoenas; (4) for engaging in allegedly deceptive business
practices by allowing unauthorized access to its website; and
(5) for allegedly aiding and abetting the alleged hackers. The
Seventh Circuit agreed with the trial court that plaintiff’s
litigation practices “smacked of bully pretense” and
constituted “abusive litigation” by “simply filing a lawsuit to
do discovery to find out if you can sue somebody.”
Eighth Circuit

In re Charter Communications, Inc., Subpoena Enforcement
Matter, 393 F.3d 771 (8th Cir. 2005). In a copyright infringement action concerning peer-to-peer file sharing activities in
which plaintiff sought to enforce DMCA subpoenas against
an ISP, the Eighth Circuit adopted the reasoning of the D.C.
Circuit’s decision in Verizon and held that Section 512(h) of
the DMCA did not authorize the subpoena issued in the
case. The court expressed concern that the Section 512(h)
subpoena mechanism “may” violate Article III’s “case or
controversy” requirement, but it declined to reach the issue.
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Ninth Circuit

Roloff v. Washington County, 544 F. App’x 780 (9th Cir.
2013). The Ninth Circuit affirmed a trial court’s ruling granting
an anonymous blogger’s motion to quash a subpoena that
sought identifying information regarding the blogger and the
blog’s commenters. The plaintiffs, stars of the TLC reality
series “Little People, Big World,” had filed suit against the
county, claiming that county employees had discriminated
against them and violated their Fourth Amendment rights by
walking on their property. The plaintiffs served on Google a
subpoena for records related to an anonymous blog devoted
to the TLC series, asserting that they could show discriminatory intent if a county employee was the author of a certain
post appearing on the blog. The blogger moved to quash,
and the trial judge granted the motion. The Ninth Circuit
affirmed, summarily holding, without adopting any particular
standard for analysis, that the trial court “did not abuse its
discretion in concluding that the value of the anonymous
speech outweighed the value of the discovery in light of the
speculative nature of the Roloffs’ claim that the comment on
the blog may have been made by a Washington County
employee.”

Mount Hope Church v. Bash Back!, 705 F.3d 418 (9th Cir.
2012). A church filed suit against a group of individuals who
had disrupted church services with a protest of the church’s
anti-gay teachings. The church subpoenaed an online service
provider seeking identifying information for seven email
account holders who were believed to have either participated
in or witnessed the protest. Applying a Dendrite-style test, the
district court quashed the subpoena on the ground that
unmasking the account holders would violate their First
Amendment rights—a decision that was not appealed. The
court also held that the movants were entitled to over $28,000
in sanctions under Federal Rule of Civil Procedure 45(c)(1)
because they had suffered an “undue burden” in fighting the
subpoena because the church (1) did not provide any nonspeculative reason for the subpoena, (2) offered shifting
justifications for the subpoena multiple times during the
proceedings, and (3) failed to analyze the relevant case law in
a timely fashion. On appeal, the Ninth Circuit reversed the
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sanctions order, holding that the “undue burden” language in
Rule 45 “is limited to harms inflicted by complying with the
subpoena,” and that “the mere need to respond to an
opponent’s advocacy in our civil justice system should [not]
be viewed as unduly burdensome when legal arguments are
advanced in good faith.”

SI03, Inc. v. Bodybuilding.com, LLC, 441 F. App’x 431 (9th
Cir. 2011) (unpublished and nonprecedential), vacating
SI03, Inc. v. Bodybuilding.com, LLC, 07-mc-06311-EJLLMB (D. Idaho Mar. 23, 2010) (dkt. 68). In vacating the
district court’s denial of a motion to compel Bodybuilding.com to identify four pseudonymous commenters who
posted criticism of plaintiffs and their products, the Ninth
Circuit reiterated that the “degree of scrutiny we give to
impositions on speech ‘varies depending on the circumstances and type of speech at issue’” and that, “in cases
involving less-protected categories of speech, such as
commercial speech, we apply a less-protective standard for
disclosure.” Looking at the comments at issue, the court
acknowledged that “the substance of these comments alone
do not suggest that the speech is ‘commercial’ in nature,”
but suggested that the identity of the commenters—that is, if
the authors worked for the plaintiff’s competitors—might
make it proper to characterize the speech as “commercial.”
On this basis, the panel remanded the case to the district
court, suggesting that it might proceed by receiving the
commenters’ identifying information in camera and, if
necessary, share it with plaintiffs’ attorneys to determine
whether the commenters have a relationship to plaintiffs’
competitors. Only thereafter, the panel reasoned, could the
district court “determine under what standard to consider the
motion to compel.” The Ninth Circuit also criticized
the district court for applying a Cahill/Dendrite standard in a
case that did not concern “core areas of free speech.”
On remand, the trial court again rebuffed the plaintiffs’
attempt to learn the identities of the anonymous commenters.
SI03, Inc. v. Bodybuilding.com, LLC, No. 07-6311-EJL
(D. Idaho Apr. 11, 2013). Pursuant to the joint recommendation
of the parties adopted by the court, defendants filed
declarations from three of the four authors, all of whom said
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they did not work in the plaintiffs’ industry at the time they
made the comments and had no business reasons for doing
so. The court held that the statements by the fourth poster
showed on their face they were not made for a business
purpose. Rejecting the plaintiffs’ request for the “attorneys’
eyes only” disclosure suggested by the Ninth Circuit, the trial
court held that it had sufficient proof that the speech was not
commercial. Turning to the standard to be used to evaluate
whether to unmask the speakers, the court held that the speech
involved deserved greater protection than commercial speech
but less protection than political or religious speech. The court
therefore adopted the relatively low-burden Sony test, but
found that the plaintiffs had failed to make a prima facie
defamation case because the statements were non-actionable
opinions.
Although not discussed in the Ninth Circuit opinion, this
matter is related to two other federal actions. In mid-2007,
SI03 sued several anonymous individuals and entities in the
Northern District of Illinois for defamation and other business
torts. See SI03, Inc. Does 1-31, No. 1:07-cv-03266 (N.D. Ill.
filed June 11, 2007) (dkt. 1). The district court stayed the
action pending the outcome of the proceedings on the motion
to compel in the District of Idaho and the appeal of the denial
of that motion. Id. (Nov. 18, 2008) (dkt. 25). Despite the
Ninth Circuit’s issuance of its 2011 order, and the district
court’s 2013 order on remand, no further action has been
taken in the Northern District of Illinois case. Also during the
pendency of the Ninth Circuit appeal, SI03 and another party
sued Bodybuilding.com and others on similar claims in the
Eastern District of Missouri, see Cornelius v. Deluca, 1:09cv-00072-RWS (E.D. Mo. filed Dec. 2, 2008, transferred
Dec. 21, 2009), an action that was then transferred on
plaintiffs’ motion to the District of Idaho, see Cornelius v.
Deluca, No. 1:10-CV-027-BLW, 2011 WL 977054 (D. Idaho
Mar. 15, 2011). See infra.

In re Anonymous Online Speakers, 661 F.3d 1168 (9th Cir.
2011), replacing previous opinion at 611 F.3d 653 (9th Cir.
2010), denying cross-petitions for writs of mandamus in
Quixtar Inc. v. Signature Management TEAM, LLC, 3:07-CV505-ECR-RAM (D. Nev. Apr. 8, 2009) (dkt. 409), and 566 F.
Supp. 2d 1205 (D. Nev. 2008). In this action in which Quixtar
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asserted tortious interference and other claims against a
competitor for an alleged online “smear campaign,” the
district court concluded that Quixtar satisfied the Cahill
standard as to certain anonymous online statements and was
entitled to discover the identity of the speakers. The
anonymous speakers sought a writ of mandamus directing the
district court to vacate its order. The Ninth Circuit found that
the speech at issue “related to the non-competition and nonsolicitation clauses of Quixtar’s commercial contracts” and
that, in this context, the Cahill standard “extends too far.”
The court did not identify an alternate standard but explained
that “the nature of the speech should be a driving force in
choosing a standard by which to balance the rights of anonymous speakers in discovery disputes” and that the “specific
circumstances surrounding the speech serve to give context
to the balancing exercise” because “commercial speech
should be afforded less protection than political, religious, or
literary speech.” Nonetheless, the court denied the petition,
finding no clear error where the district court found Quixtar
met the “most exacting” Cahill standard. (In the original—
now vacated—opinion, the court expressly concluded that
the speech was commercial in nature; this determination was
removed from the revised opinion.)

Does 1-4 v. United States Attorney Office, District of Nevada,
407 F. App’x 165 (9th Cir. 2010). Prosecutors in a highprofile tax evasion case issued a grand jury subpoena to the
Las Vegas Review Journal seeking the identities of everyone
who had commented upon an article about the case. On the
day the ACLU of Nevada filed a motion to quash on behalf of
some of the commenters, the prosecution filed a superseding
subpoena seeking only the information about the posting of
two comments allegedly threatening prosecutors and jurors.
The commenters then revised their motion to seek to quash
both subpoenas, but the Journal complied with the second
subpoena. The district court granted the prosecution’s motion
to dismiss the ACLU’s revised motion to quash and the Ninth
Circuit affirmed, holding the issue involving the first
subpoena was moot and the commenters lacked standing to
challenge the second subpoena because they failed to
establish they authored the two comments at issue.
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
London v. Does 1-4, 279 F. App’x 513 (9th Cir. 2008).
Ruling on an appeal regarding a request for discovery in a
foreign divorce case pursuant to 28 U.S.C. § 1782, the Ninth
Circuit rejected a First Amendment challenge to a subpoena
seeking identifying information about users of email
accounts allegedly used to solicit sex online. The parties
were married U.S. citizens living on the island of St. Martin,
a French territory, where the wife filed for divorce in the
local French courts. The wife alleged adultery and sought a
subpoena from a U.S. district court requiring Yahoo! to
provide identifying information about five email accounts
she claimed her husband used to seek sexual partners. The
Ninth Circuit affirmed the denial of a motion to quash filed
by the husband and four John Does, holding that the
movants “cite[d] no authority for the proposition that the
First Amendment bars release of identifying data for email
accounts used to solicit sex partners on the Internet” and that
“a legal privilege was not implicated.”
D.C. Circuit

AF Holdings, LLC v. Does 1-1058, 752 F.3d 990 (D.C. Cir.
2014). The D.C. Circuit held that subpoenas to internet
service providers seeking to identify alleged copyright
infringers should be quashed when the plaintiff cannot show a
good faith basis to believe that there is proper personal
jurisdiction, venue or joinder. The panel decision reversed a
trial court order in favor of the plaintiff, which was the
purported copyright owner of a sexually explicit video and
had sought the identifying information of more than one
thousand IP address holders the plaintiff claimed had
downloaded infringing copies of the video via the BitTorrent
file-sharing protocol. Personal jurisdiction and venue were
patently lacking, the court held, and the use of commonly
available geolocation tracking software would have shown
that only a handful of purported defendants actually were in
the District of Columbia. Furthermore, the court found it
appropriate for the ISPs challenging the subpoenas to raise
these procedural defenses at this early stage because “[i]f a
subpoena compels disclosure of information that is not
properly discoverable, then the burden it imposes, however
slight, is necessarily undue.” Finally, the court held that
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joinder was improper because the only alleged commonality
among the defendants was that they infringed the same work
using the same method, which did not suffice as the same
transaction or occurrence under the federal rules.

Recording Industry Ass’n of America, Inc. v. Verizon
Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003). In
this copyright infringement action concerning peer-to-peer
file sharing activities, plaintiff served an Internet service
provider with a subpoena pursuant to the Digital Millennium
Copyright Act, 17 U.S.C. § 512(h). The district court denied
the ISP’s motion to quash, but the D.C. Circuit reversed,
holding that a DMCA subpoena may only be issued to an
ISP “engaged in storing on its servers material that is
infringing or the subject of infringing activity,” and not to
one acting as a mere conduit of information as in the peerto-peer file sharing context.
DECISIONS BY FEDERAL DISTRICT COURTS AND
STATE COURTS
Arizona Federal Cases

Directory Assistants, Inc. v. Does 1-10, No. MC 11-00096PHX-FJM, 2011 WL 5335562 (D. Ariz. Nov. 4, 2011).
Rejecting both parties’ advocacy of a stricter standard, the
court held that a plaintiff’s mere “satisfaction of the federal
pleading standard” was likely sufficient to justify issuing a
subpoena to identify an anonymous online critic of the
plaintiff. The plaintiff had filed a suit claiming tortious interference with contractual relations and business expectancy
against an anonymous defendant who authored a derogatory
post about the company on the gripe site RipoffReport.com.
The owners of Ripoff Report moved to quash the subpoena
seeking the identity of the anonymous critic. The plaintiff
argued that the court should use the “concrete showing of a
prima facie claim of actionable harm” standard in determining whether to issue the subpoena, while the website argued
that the court should use the standard applied in Mobilisa,
Inc. v. Doe, 170 P.3d 712 (Ariz. Ct. App. 2007), which requires
the complaint to be able to withstand a hypothetical summary
judgment motion. Instead, the court held that it would apply
“the minimal possible standard for disclosure” and require
nothing more than adequate pleadings. “We think that now
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that the federal pleading standard has been raised by
Twombly and Iqbal, . . . satisfaction of the federal pleading
standard should be sufficient to warrant disclosure of the
identity of anonymous comments.” Still, the court explained
that it “need not decide what standard applies because
plaintiff has failed to satisfy even the federal pleading
standard.”

Ecommerce Innovations L.L.C. v. Does 1-10, No. 2:08-MC00093-DGC, 2009 WL 322893 (D. Ariz. Feb. 10, 2009). A
jewelry retailer filed suit against several anonymous posters
to the website Ripoff Report, alleging a federal trade libel
claim and a defamation claim. Applying the summary judgment standard, the district court ordered the operator of the
website to comply with a subpoena seeking the identities of
the anonymous posters. The website operator appealed to the
Ninth Circuit, but the appeal was voluntarily dismissed
before the court rendered a decision.

Best Western International, Inc. v. Doe, No. CV-06-1537PHX-DGC, 2006 WL 2091695 (D. Ariz. July 25, 2006). A
non-profit corporation filed suit against John Doe defendants
alleging breach of contract, defamation, trademark infringement and other torts arising from the posting of anonymous
comments on a website created for the non-profit’s members
and staff. In response to plaintiff’s motion to expedite
discovery to seek disclosure of the posters, the court found
that the speech, which was “in a forum specifically designed
for the exchange of opinions and ideas anonymously,” was
“purely expressive” and thus entitled to “substantial First
Amendment protection.” Given “the significant [speech]
interest at stake,” the court held, citing both Cahill and Sony,
that the plaintiff “must submit sufficient evidence to
establish a prima facie case for each essential element of the
claim” that is “within plaintiff’s control.” The court denied
the motion because plaintiff’s complaint provided no factual
support for any of its claims, but permitted plaintiff to renew
its motion if it undertook “reasonable efforts to notify the
anonymous defendant of the discovery request,” and
“with[held] action to allow the defendant an opportunity to
respond.”
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Arizona State Cases

Mobilisa, Inc. v. Doe, 170 P.3d 712 (Ariz. Ct. App. 2007).
An anonymous individual obtained access to a personal
email message sent by a wireless company’s CEO and
forwarded that message to the company’s management team
along with the comment, “Is this a company you want to
work for?” The company sued the anonymous person and
his email service provider, and the trial court permitted
discovery of the person’s identity from that provider over
the objection of them both. The appellate court reversed and
remanded, adopting a modified Cahill summary judgment
standard and holding that the trial court had failed to engage
in the balancing step.
Arkansas State Cases

Henley v. Unknown Persons, No. 63CV-12-152-2 (Ark. Cir.
Ct. Saline Cnty. filed Feb. 22, 2012). A trial court judge
granted a motion to quash a subpoena from three city officials
seeking identifying information about anonymous commenters to a blog. Three aldermen for the town of Bryant, Ark.,
sued the anonymous commenters for defamation and issued a
subpoena to the owner of the blog, which discussed local
news and politics. The judge granted blogger Shelli Russell’s
motion to quash, holding that the politician plaintiffs had not
provided facts showing the challenged statements were
actionable. Although it is not reproduced in the docket entry
granting the motion, a local newspaper reported that at the
hearing on the motion the judge read a statement from the
bench explaining that he balanced the commenters’ rights to
anonymous political speech against the politicians’ claims
their reputations were harmed. Months later, two of the
purported anonymous commenters filed a motion to quash
another subpoena, this one sent directly to their ISP, AT&T.
Before the judge could rule on that motion, however, the
plaintiffs’ attorney successfully moved to dismiss the case
without prejudice, stating that a conflict had developed. See
Brent Davis, Judge Keeps Bloggers’ Names Anonymous,
SALINE COURIER (July 13, 2012), http://www.bentoncourier.
com/content/judge-keeps-bloggers-names-anonymous.
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California Federal Cases

Drummond Co. v. Collingsworth, Nos. 13–mc–80169–JST
(JCS), 13–mc–80171–JST (JCS), 2013 WL 6074157 (N.D.
Cal. Nov. 18, 2013). Drummond, a coal company with a
large mine in Colombia, sued the defendants, an attorney
and his law firm who had represented clients in litigation
against Drummond, for defamation over letters that accused
Drummond of human rights abuses. Drummond issued
subpoenas seeking identifying information and IP address
logs for four email accounts that Drummond alleged were
linked to people involved in a witness payment scheme in
defendants’ cases against Drummond. Defendants acknowledged making the payments but said they were to provide
security for the witnesses and their families, not bribes in
exchange for false testimony. One of the email account
holders, an American lawyer working in Colombia for a
nonprofit group affiliated with defendants, moved to quash
the subpoena against her. The court held that the subscriber
information, such as the mailing address and phone number,
associated with the account was “clearly discoverable” even
though the lawyer had acknowledged the account was hers.
But the IP log information was different. That information
would reveal the date, time and computer or network
server—and, thus, the location—from which the lawyer
accessed her email account. The IP log information would
enable Drummond “to make reasonable inferences regarding
the individuals and organizations with whom [the lawyer]
has associated,” the court found. Because the lawyer was “a
member of a transnational group that engages in expressive
activity through its advocacy for human rights in Colombia,”
revealing information that would lead to the people with
whom she met would violate her First Amendment associational and speech rights, which she retained despite being in
another country, the court held. Applying the balancing test
created by the Ninth Circuit in Perry v. Schwarzenegger,
591 F.3d 1126, 1132 (9th Cir. 2009) for cases analyzing
discovery requests implicating First Amendment associational rights, the court found that the lawyer made a prima
facie showing that the information was protected by First
Amendment privilege and that Drummond did not show that
the IP log information was “highly relevant” to its libel case
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or “carefully tailored” to minimize the intrusion on the
lawyer’s rights. The defendants asserted that the other three
email addresses belonged to Colombian citizens who were
potential witnesses or their associates in the human rights
cases, but the court held that the defendants did not have
standing to challenge the subpoenas on behalf of those third
parties because they did not have a sufficiently close
relationship with them. Further, the court held, as foreign
citizens, the Colombians lacked First Amendment rights, so
the subpoenas could not be quashed on that basis.

In re ex parte Application of Ontario Principals’ Council,
No. 5:13-mc-80237, 2013 WL 6073517 (N.D. Cal. Nov. 8,
2013). Canadian defamation plaintiffs applied for an order
authorizing a subpoena to Topix, pursuant to 28 U.S.C.
§ 1782(a). Upon considering the U.S. Supreme Court’s fourfactor test for weighing such an application, the court
granted the application and issued an order authorizing the
subpoena for identifying information about the unknown
defendants who had posted allegedly defamatory comments
to Topix. The court denied plaintiffs’ request, however, for
an order enjoining Topix from notifying the users of the
issuance of the subpoena. Plaintiffs had sought such an order
ostensibly to avoid evidence spoliation. The court concluded
that the applicants had not “persuasively demonstrated this
court’s authority to issue a prior restraint upon Topix.”

Dhillon v. Does 1-10, No. C 13-1465 SI (N.D. Cal. Nov. 4,
2013). In a case in which a California Republican Party
figure asserted claims for copyright infringement over the
use of a photograph of her on an anonymous blog critical of
her political ally and sought pre-service discovery of
information identifying those responsible for the blog, the
trial judge initially granted plaintiff’s request for a subpoena
to Google. See Dhillon v. Does 1-10, No. C 13-1465 SI,
2013 WL 5367783 (N.D. Cal. Sept. 25, 2013). The court
vacated the order and ordered briefing after counsel for John
Doe 1 objected and subsequently held that the subpoenas
were unnecessary because the Doe defendant had agreed to
accept service through counsel. Throughout, the court did
not reach the defendant’s First Amendment arguments.
The court later granted summary judgment for the
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still-anonymous defendants, holding that the blog’s posting
of the photo constituted fair use.

Thompson v. Doel, No. 5:13–mc–80088–EJD–PSG, 2013
WL 5544607 (N.D. Cal. Oct. 7, 2013). Without mentioning
any First Amendment considerations, the court granted an ex
parte application under 28 U.S.C. § 1782(a) by the plaintiff
in a Canadian defamation action to subpoena Google to
obtain identifying information regarding the owner of a
Gmail account from which the allegedly defamatory email
was sent. The court held that each of the four factors to be
considered in applications filed pursuant to § 1782(a),
pertaining to discovery in foreign proceedings, favored the
Canadian plaintiff’s request: (1) whether the material sought
is outside the reach of the foreign court’s jurisdiction; (2) the
nature of the tribunal, the character of the proceedings and
the receptivity of the foreign tribunal to similar requests
from U.S. courts; (3) whether the request represents an
attempt to circumvent the evidentiary rules of the foreign
jurisdiction; and (4) whether the subpoena is unduly intrusive
or burdensome. Regarding the final criterion, the court held
that the subpoena would not be unduly intrusive because it
sought identifying information rather than the content of
emails sent from the account.

Chevron Corp. v. Donziger, No. 12-mc-80237 CRB, 2013
WL 4536808 (N.D. Cal. Aug. 22, 2013) (Cousins, Mag. J.).
After plaintiffs in Ecuador, represented by New York
attorney Steven Donziger, obtained an $18.2 billion judgment
against Chevron from an Ecuadorian court for damages
related to environmental harms alleged in that country,
Chevron sued Donziger and others in the Southern District
of New York for fraud and violation of RICO, claiming they
engaged in a variety of unlawful activities to extort the
judgment from the Ecuadorian court. Chevron obtained
numerous email communications in discovery in that case,
and then issued Stored Communications Act subpoenas to
Google and Yahoo! seeking non-content information about
the email accounts, including the account holders’ identities.
Several of these account holders, who were not parties to the
lawsuit, moved to quash the subpoenas in federal district
court in California, alleging, inter alia, that the subpoenas
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violated their First Amendment right to speak anonymously.
In rejecting this argument, the court distinguished In re
Anonymous Online Speakers and 2TheMart on the ground
that unlike in those cases, “Chevron is not seeking the
content of emails or a link between the Doe movants’
identities and particular statements made by them” or “to
link the identity of the email subscribers with the receipt of
particular statements.” “In light of these factual differences,”
the court held, it “cannot conclude that any right to
anonymous speech is implicated by Chevron’s subpoenas
for IP logs,” and “is not inclined to find . . . that the exercise
of a civil litigant’s subpoena power will encroach upon an
online user’s activities where no speech is at issue.” The
court also held that the movants “have also not satisfactorily
shown that their actions were anonymous” because
“[s]everal of their email addresses contain their first and last
names”; “[e]mail addresses are labels we voluntarily present
to the outside world, through which we allow the world to
contact us, and in that way identify us.”

Readify, Pty Ltd. v. Readifyblog, No. CV 12-05357 KAW,
2012 WL 6737809 (N.D. Cal. Dec. 28, 2012). A federal
magistrate judge granted the plaintiff’s ex parte motion for
expedited discovery to identify the person responsible for a
blog the plaintiff claims defamed it. Readify, an Australian
software developer, claimed that the site called “readifyblog”
contained statements that damaged the company’s reputation
and tortiously interfered with its contracts. Readify sought an
order requiring Wordpress’s parent company, Automattic,
Inc., to disclose information identifying the blogger. Citing
Seescandy, the district court granted Readify’s request.
Notably, the court held that the plaintiff demonstrated that its
action could meet the Seescandy standard merely by pleading
“the essential elements to state a prima facie claim for
defamation and tortious interference,” a holding at odds with
Seescandy itself.

Huntington Ingalls Inc. v. Doe, No. C 12-05506 DMR, 2012
WL 5897483 (N.D. Cal. Nov. 21, 2012). A federal court
granted the plaintiff’s ex parte motion to obtain identifying
information about the holder of an email account, using a
standard developed in anonymous speech cases despite the
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fact that the account holder’s speech was not at issue.
Huntington Ingalls, a large defense contractor, sought to
identify the holder of a gmail account to which a vendor
accidentally sent some of the company’s proprietary
information. The company also sought confirmation from
Google of whether the account had been accessed by anyone
after the date of the mistaken email. The plaintiff argued
that, because it had no information other than the email
address and its associated IP address, and the owner did not
respond to the company’s inquiries, it was entitled to
subpoena Google to identify the account holder in order to
proceed with a lawsuit seeking return of the company’s
property. The court granted Huntington Ingalls’ request,
ruling that it had shown “good cause” for the expedited
discovery under the Seescandy standard. The plaintiff, the
court held, had no other way to ascertain the identity of
the putative defendant alleged to have possession of the
company’s property. After initially denying the company’s
request for a lack of specificity, the court ordered Google to
attempt to notify the account holder and provided a 20-day
window for either Google or the account holder to challenge
the subpoena. Less than two months after the court’s ruling,
Huntington Ingalls dismissed the case with prejudice.

In re Gianasso, No. C 12-80029, 2012 WL 651647 (N.D. Cal.
Feb. 28, 2012). The court granted an ex parte application for
assistance in gathering evidence for potential criminal defamation action in Switzerland and authorized the issuance of
subpoenas to the blog-hosting service Glassdoor, which
subpoenas were to seek identifying information for the
blogger “IATA Anonymous.” The applicant did not raise, nor
did the court consider, the First Amendment implications of
the application.

Doe v. United States Securities & Exchange Commission,
No. C 11-80209 CRB, 2011 WL 5600513 (N.D. Cal. Nov.
17, 2011). The SEC issued a subpoena to Google seeking
identifying information about a person suspected of using an
email account, under a pseudonym, to tout stock as part of
an allegedly illegal “pump and dump” scheme. The court
rejected the argument, raised by the anonymous target in a
motion to quash, that the Cahill summary judgment standard
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applied. Instead, the court relied on a Ninth Circuit case—
which it described as “set[ting] forth the well-established
First Amendment analysis of agency-issued subpoenas”—
and determined that, “if a movant makes a prima facie
showing of First Amendment infringement, the burden shifts
to the government to show (1) ‘that the information sought
through the subpoenas is rationally related to a compelling
governmental interest,’ and ‘(2) the government’s disclosure
requirements are the least restrictive means of obtaining the
desired information.’” The court held that the government met
both aspects of this test, noting that “by only requesting Doe’s
identifying information and the limited communications
between Google and Doe, the SEC has pursued the least
restrictive means of pursuing that governmental interest.”

In re Application for Appointment of a Commissioner re
Request for Judicial Assistance for the Issuance of Subpoena
Pursuant to 28 U.S.C. § 1782, No. C 11-80136, 2011 WL
2747302 (N.D. Cal. July 13, 2011). The court granted an ex
parte application for assistance in gathering evidence for a
defamation action pending in Spain and authorized the
issuance of subpoenas to WordPress and Automattic, Inc.
seeking identifying information for the blogger “nocierre.”
The applicant did not raise, nor did the court consider, the
First Amendment implications of the application.

Art of Living Foundation v. Does 1-10, No. 10-CV-05022LHK, 2011 WL 2441898 (N.D. Cal. June 15, 2011)
(dismissing defamation claim); 2011 WL 3501830 (N.D.
Cal. Aug. 10, 2011) (Lloyd, Mag. J.) (denying motion to quash
subpoena seeking identifying information for “Skywalker”);
2011 WL 5444622 (N.D. Cal. Nov. 9, 2011) (granting relief
from Aug. 10, 2011 order and staying discovery); 2012 WL
1565281 (N.D. Cal. May 1, 2012) (granting motion for
summary judgment on copyright claim but denying in part
motion to strike trade secrets claim); unpublished order of
dismissal (N.D. Cal. July 9, 2012). In this action involving the
publication of a yoga and meditation guru’s instructional
materials by pseudonymous bloggers, the district court
granted relief from the magistrate judge’s order denying a
motion to quash subpoenas seeking the identity of
“Skywalker.” The bloggers argued that the claims were
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“manufactured solely for the purpose of identifying Doe
defendants, and are inextricably intertwined with an effort to
chill Doe defendants from freely expressing their criticisms of
[plaintiff].” The court agreed. Finding that it “should focus on
the ‘nature’ of the speech conducted by the defendant,” the
court first concluded that the Highfields Capital—not Sony—
standard applied, even though plaintiff’s only remaining
claims were for violations of copyright and trade secret laws.
The court explained that, because “copyright law contains
built-in First Amendment accommodations,” particularly
within the doctrine of fair use, Skywalker’s speech “raises
significant constitutional issues.” Next, although Skywalker
failed to rebut plaintiff’s copyright ownership, the court
quashed the subpoenas on the basis of the Highfields Capital
balancing test. It determined that “unveiling [Skywalker’s]
identity will both subject him to harm and chill others from
engaging in protected speech” and was not necessary for
prosecution of plaintiff’s claims, given that Skywalker was
cooperating in discovery. In July 2012, the case was voluntarily dismissed pursuant to a settlement agreement. Defendants agreed to “freeze” the two blogs at issue, and plaintiffs
agreed to pay defendants’ counsel $250,000 in attorney’s
fees.

Zoosk Inc. v. Doe 1, No. C 10-04545 LB, 2010 WL 5115670
(N.D. Cal. Dec. 9, 2010). In one of the first cases involving
anonymous and allegedly defamatory tweets, the court
ordered two ISPs to provide identifying information about the
user of a Twitter account who tweeted allegedly defamatory
comments about Zoosk, an online matchmaking service.
Zoosk’s complaint alleges that someone using the name
“Squirrel Juice” began posting defamatory tweets about
Zoosk after the service deleted an account created for “Nita
Nielsen,” whose pornographic website describes her, in the
court’s words, as “an adult entertainer, professional consort,
and au fait fellatrix.” When a Zoosk employee contacted the
tweeter via Twitter, the company got a response from a gmail
address vowing to continue discouraging others from using
the dating service. Zoosk then emailed a cease and desist
letter to that address, obtained eight IP addresses associated
with the Twitter and gmail accounts, and issued subpoenas
seeking identifying information about them. TimeWarner and
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Comcast, the ISPs for six of the eight IP addresses, asked for
a court order before turning over the information, which the
district court granted. The court ruled that the plaintiff had
satisfied the Seescandy test and permitted early discovery of
the identifying information.
Several other federal courts in California have permitted the
unmasking of anonymous speakers after applying the
standards announced in Seescandy, but most such cases
involve lesser speech interests than those at stake in Zoosk.
See Specialized Bicycle Components, Inc. v. Barton, No.
C10-05725 HRL, 2011 WL 31268 (N.D. Cal. Jan. 5, 2011)
(pseudonymous eBay seller of allegedly counterfeit bicycle
parts); Patrick Collins Inc. v. Does 1-1219, 97 U.S.P.Q.2d
1667, 2010 WL 5422569 (N.D. Cal. 2010) (anonymous
users of peer-to-peer software who allegedly shared
infringing copies of the video Real Female Orgasms # 8);
Liberty Media Holdings, LLC v. Does 1-59, No. 10-1823DMS (WVG), 2010 WL 4568714 (S.D. Cal. Nov. 3, 2010)
(anonymous individuals who allegedly improperly accessed
the servers and distributed copyrighted adult videos from
plaintiff’s website; court refused, however, to grant “openended order” permitting plaintiff to subpoena “any other
relevant service providers [Plaintiff] later identifies”); Io
Group, Inc. v. Does 1-65, No. 10-4377 SC, 2010 WL
4055667 (N.D. Cal. Oct. 15, 2010) (users of the P2P site
eDonkey2000 who allegedly shared infringing copies of
plaintiff’s adult videos).

Black v. Google, Inc., No. 10-02381 CW, 2010 WL 3222147
(N.D. Cal. Aug. 13, 2010), aff’d, 457 F. App’x 622 (9th Cir.
2011). The trial court held that Section 230 of the Communications Decency Act provided Google with immunity from a
lawsuit by owners of a roofing business based on an anonymous comment about that business posted on Google Maps.
The plaintiffs sued Google claiming intentional infliction of
emotional distress and several business and contractual torts.
In an apparent attempt to evade Section 230 immunity, the pro
se plaintiffs claimed that Google’s “programming” encouraged
anonymous, defamatory comments about businesses and that
the site’s dispute resolution process was inadequate. The court
rejected those arguments, noting that the allegedly defamatory
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comment was the genesis of their complaint, that plaintiffs
did not allege that Google authored the comment and holding
that failure to remove an allegedly defamatory comment does
not vitiate a website’s Section 230 immunity. The Ninth
Circuit upheld the lower court in a memorandum opinion.

Zynga Game Network Inc. v. Williams, No. CV-10:01022
JF, 2010 WL 2077191 (N.D. Cal. May 20, 2010) (Trumbull,
Mag. J.). Zynga, the company behind the online game
“Mafia Wars,” moved to conduct third party discovery to
determine the identity of the owners and operators of three
different websites that were allegedly infringing the “Mafia
Wars” trademark and reselling “Virtual Goods” from “Mafia
Wars” in violation of the game’s terms of service. Following
the Seescandy motion to dismiss test, the magistrate judge
granted the motion but narrowed the scope of the proposed
subpoenas to that necessary “to only determine Defendants’
true identities and locations” in order to effectuate service.

USA Technologies, Inc. v. Doe, 713 F. Supp. 2d 901 (N.D.
Cal. 2010). A Pennsylvania company subpoenaed Yahoo to
discover the identity of an anonymous poster against whom
it asserted a defamation claim and a claim for violations of
the Securities Exchange Act of 1934 (“the Act”). The claims
were based on statements that accused plaintiff of “legalized
highway robbery” and operating a “Ponzi scheme” and
plaintiff’s CEO of holding a “worldview . . . that humanity
exists to be fleeced” and being a “known liar.” The court
applied the standard from Highfields Capital Management,
an earlier Northern District case—which the court described
as a “streamlined version of the Dendrite test”—and granted
the poster’s motion to quash on the basis that plaintiff
“failed to plead, much less adduce competent evidence to
support, a prima facie case” for either its securities or its
defamation claim.

Xcentric Ventures, LLC v. Arden, No. C 09-80309 MISC JW
(PVT), 2010 WL 424444 (N.D. Cal. Jan. 27, 2010). After
obtaining a default judgment in a copyright and trademark
infringement action against a website, the plaintiff in this
action served a subpoena on Google to determine the identity
associated with an email address found on the website. The
website moved to quash, and the court denied the motion in
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part, applying the five-part test set out in UMG Recordings,
an earlier Northern District case. Quashing parts of the
subpoena as overbroad, the court enforced the subpoena to
the extent it was limited to seeking identifying information
about the email address. (The court specifically found the
Northern District’s Highfields Capital Management test was
inapplicable on the basis that it “did not involve any copyright
claims,” whereas UMG Recordings did.) In walking through
the first requirement, the court concluded that the plaintiff
had offered more than “a concrete showing of a prima facie
claim of actionable harm” because it had already obtained a
default judgment. The court allowed the subpoena response
to be provided subject to the terms of a protective order.

Capitol Records, Inc. v. Doe, No. 07-CV-1570-JM, 2007
WL 2429830 (S.D. Cal. Aug. 24, 2007). Music companies
filed a copyright infringement suit against a Doe defendant
file sharer and sought expedited discovery of the defendant’s
identity from his or her third-party ISP. The court permitted
the discovery under Fed. R. Civ. P. 26(d), holding the
plaintiffs established “good cause” for the request given
“(1) the allegations of copyright infringement . . .; (2) the
danger that [the ISP] will not preserve the information that
Plaintiffs seek; (3) the narrow tailoring of the discovery
request so as not to exceed the minimum information
required to advance this lawsuit without prejudicing the
Defendant; and (4) the Court’s finding that the expedited
discovery requested will substantially contribute to moving
this case forward.”

Wang Xiaoning v. Yahoo! Inc., No. 4:07-CV-02151-CW (N.D.
Cal. filed July 30, 2007), complaint available at http://docs.
justia.com/cases/federal/district-courts/california/candce/
4:2007cv02151/191339/51. Two Chinese dissidents sued
Yahoo pursuant to the Alien Tort Claims Act and the Torture
Victim Protection Act and alleged human rights and other tort
claims. The plaintiffs asserted that Yahoo’s disclosure of their
identifying information to the Chinese government aided or
abetted torture and other injuries to the dissidents. Yahoo
settled the case for an undisclosed amount.

Columbia Pictures Industries v. Bunnell, No. CV 061093FMCJCX, 2007 WL 2080419 (C.D. Cal. May 29,
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2007). Plaintiffs filed a complaint against defendants for
copyright infringement, based on website operated by
defendants that allows users to download dot-torrent files.
Plaintiffs then moved for an order requiring defendants to
preserve and produce certain server log data, including the
IP addresses of its users. Plaintiffs’ website was designed to
erase such data after six hours. The court ordered the
defendants to preserve and produce the data from the date of
its decision on, but allowed the defendants to mask, encrypt
or redact their users’ IP addresses. The court declined to
impose sanctions on the defendants for the destruction of
earlier data because of a lack of precedent concerning
temporarily stored data.

UMG Recordings, Inc. v. Does 1-4, No. 06-0652 SBA, 2006
WL 1343597 (N.D. Cal. Apr. 19, 2006). In copyright
infringement action for peer-to-peer file sharing, court
authorized Rule 45 subpoena to be issued to file sharers’ ISP
and ordered ISP to notify the file sharers of its issuance. The
court held that good cause existed for issuance of the
subpoena because plaintiffs had no other means of obtaining
the information, ISPs “typically retain user activity logs for
only a limited period,” and “copyright infringement claims
necessarily involve irreparable harm to Plaintiffs.” Adopting
the Sony court’s view that even peer-to-peer file sharers
have First Amendment rights “to a limited extent,” the court
also applied the Sony factors in reaching its decision to
permit the subpoena.

Highfields Capital Management L.P. v. Doe, 385 F. Supp.
2d 969 (N.D. Cal. 2005). A hedge fund initiated a trademark
and unfair competition action against an anonymous speaker
who used the name of the hedge fund in his screen name and
posted “sardonic commentary” on an Internet message
board. The anonymous speaker filed a motion to quash a
subpoena issued to the speaker’s ISP, and a magistrate judge
concluded that because the comments involved issues of
public concern (the performance and policies of a large,
publicly-traded corporation and hedge fund), a two-part test
applied, requiring that (1) plaintiff “adduce competent
evidence … tend[ing] to support a finding of each fact that
is essential to a given cause of action”; and (2) if the
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plaintiff satisfies the requisite showing, the court must
“assess and compare the magnitude of the harms that would
be caused to the competing interests” and determine whether
“enforcing the subpoena would cause relatively little harm
to the defendant’s First Amendment and privacy rights and
that its issuance is necessary to enable plaintiff to protect
against or remedy serious wrongs.” The magistrate judge
held that plaintiff failed to satisfy either part of this test, and
the district court adopted the recommendation on the ground
that plaintiff had failed to make a sufficient showing that the
anonymous poster had engaged in wrongful conduct causing
harm to plaintiff.

Rocker Management LLC v. Does 1-20, No. 03-MC-33, 2003
WL 22149380 (N.D. Cal. May 29, 2003). An investment
management firm sued Doe defendants in New Jersey for
allegedly posting libelous comments in a Yahoo chat room
and subpoenaed Yahoo for their identities. Following the
Seescandy approach, the court granted an anonymous
defendant’s motion to quash the subpoena on the ground that
plaintiff had not identified any specific statement which, in
the context in which it was made, would be viewed by a
reasonable reader as a defamatory statement of fact given
the hyperbolic nature of many comments posted in such chat
rooms.

Global Telemedia International, Inc. v. Doe 1, 132 F. Supp.
2d 1261 (C.D. Cal. 2001). A telecommunications company
brought suit against two posters to an Internet bulletin board,
alleging that their messages about the company were
defamatory. The court granted the defendants’ motion to
strike pursuant to California’s anti-SLAPP statute, holding
that the posts about the large, publicly traded company were
made “in connection with a public issue” and that the plaintiffs failed to show a probability of success on their claims
for trade libel and defamation.

Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573
(N.D. Cal. 1999). Discussed in Seminal Decisions, supra.
California State Cases

Digital Music News LLC v. Superior Court, 171 Cal. Rptr.
3d 799 (Ct. App. 2014). UMG, a music recording company,
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sued Escape, the operator of an Internet business that
permits users to upload and retrieve digital music files, for
copyright infringement. After Digital Music News, an online
newsletter, reported that a music artist unaffiliated with
UMG had also sued Escape for copyright infringement, an
anonymous person posted comments to the article stating
that he was an employee of Escape and that Escape’s
management required its employees to upload music without
a license to do so. Escape served a subpoena on Digital
Media News for the anonymous commenter’s identifying
information. The Court of Appeal reversed the trial court’s
order requiring compliance with the subpoena on the ground
that the information sought was not reasonably calculated to
lead to the discovery of admissible evidence in the UMG
case, detailing why the anonymous commenter’s statements
neither refuted UMG’s allegations nor supported Escape’s
defenses or counterclaims. The court also held that, even if
the commenter’s identifying information were reasonably
calculated to lead to the discovery of admissible evidence,
the court would still refuse to enforce the subpoena because
the commenter’s right of privacy under the California Constitution “would outweigh Escape’s need for the information” in
that the commenter’s anonymity “frees him or her from fear
of retaliation, an even more compelling interest if [the
commenter] truly is an Escape employee, as represented,
because exposure could endanger not only his or her privacy
but also livelihood.” In reaching this conclusion, the court
also noted that comments posted to online news publications
have “become ubiquitous on the Internet and [are] widely
perceived to carry no indicium of reliability and little
weight.”

In re Doe I, No. CPF 13 513271 (Cal. Super. Ct. S.F. Cnty.
Dec. 11, 2013). A town council candidate in Freeport, Maine
commenced a suit for defamation and related claims against
a John Doe defendant in Maine state court in connection
with articles published on a website called The Crow’s Nest.
In an effort to obtain Doe’s identity, the plaintiff issued a
subpoena to Automattic, Inc., a third party platform that
hosted The Crow’s Nest. After receiving notification of the
subpoena from Automattic, two John Does moved to quash
pursuant to California procedure governing subpoenas and
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the anti-SLAPP statute. Applying Krinsky v. Doe 6, 72 Cal.
Rptr. 3d 231 (Ct. App. 2008), the court concluded that the
plaintiff had failed to make a prima facie showing of libel
because the challenged statements, while potentially “rude
and distasteful,” were First Amendment-protected parody.
Accordingly, it quashed the subpoena and awarded
attorney’s fees recoverable under the anti-SLAPP statute.

Krinsky v. Doe 6, 72 Cal. Rptr. 3d 231 (Ct. App. 2008). An
officer of a financial company brought an action for
defamation and interference with contractual relationships in
Florida against anonymous posters of messages to Yahoo
financial message boards. Plaintiff subpoenaed Yahoo for
their identities. After exhaustively reviewing the extant case
law on the subject, the court held that, to unmask an anonymous poster, a plaintiff must (1) “attempt to notify the
defendant” unless such an attempt would be futile or
unnecessary (e.g., if the subpoena recipient itself notifies the
defendant); and (2) “make a prima facie showing of the
elements” of a claim. Applying the test, the court reversed
the denial of one poster’s motion to quash, holding that the
posts were nonactionable statements of opinion and the
tortious interference claim was, in actuality, simply a claim
for defamation.

O’Grady v. Superior Court, 44 Cal. Rptr. 3d 72 (Ct. App.
2006). In a trade secret misappropriation case, Apple
Computer sought the identities of persons who provided
information about a yet-to-be released Apple product to
certain website publishers which had, in turn, posted articles
about the product, including what appeared to be original
internal Apple documents. The court held that because the
material was not merely “posted” by unknown persons to the
websites but was, rather, received in the course of newsgathering by the website publishers themselves, the First
Amendment reporter’s privilege and California shield law
applied and barred discovery of the sources’ identities.

Matrixx Initiatives, Inc. v. Doe, 42 Cal. Rptr. 3d 79 (Ct.
App. 2006). A pharmaceutical company filed suit for
defamation and related claims against anonymous posters to
a Yahoo message board. The plaintiff subpoenaed a hedge
fund, from whose offices the posts originated, for the
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identities of the anonymous posters. The court affirmed an
order granting the plaintiff’s motion to compel, holding that
neither the hedge fund nor its manager had standing to assert
the First Amendment rights of the anonymous speakers.

Coupleguys, Inc., v. Doe, No. BC 427389 (Cal. Super. Ct.
L.A. Cnty. filed Dec. 4, 2009). A corporation acting on
behalf of Ron Livingston (of Office Space fame) filed suit
against a Doe defendant, alleging claims of libel, false light,
and misappropriation, for having posted online, including to
Wikipedia and Facebook, that Livingston is involved in a
relationship with another man.

Chang v. Regents of University of California, No. 34-0933484 (Cal. Super. Ct. Sacramento Cnty. Sept. 9, 2009). In a
civil suit, the plaintiff sought the identities of people who
posted anonymous comments on a blog, contending that the
comments were libelous and, because the comments
appeared to be made by managing agents of the defendant,
they violated an earlier settlement agreement between the
parties. Applying Krinsky v. Doe 6, 72 Cal. Rptr. 3d 231 (Ct.
App. 2008), the court concluded that the plaintiff had failed
to establish a libel claim against the posters, but did find that
the subpoena appeared “reasonably calculated to lead to
admissible evidence” concerning a potential breach of the
settlement agreement. The court ordered the plaintiff to pay
for an independent third party to review the posters’
identifying information and determine whether any of them
were managing agents of the defendant. If so, that
information would be released to the plaintiff.

People v. Kuehl, No. 09HF0538 F A (Cal. Super. Ct. Orange
Cnty. Aug. 18, 2009). A criminal defendant sought the
identity of an anonymous poster who was a percipient witness
to a fatal car accident. The court denied the newspaper’s
motion to quash the subpoena, holding that “[e]ven if the
California Shield Law is applicable to the subject information, the defendant’s due process right to a fair trial
supersedes any otherwise conflicting rights of the moving
party [or the anonymous poster].”

H. B. Fuller Co. v. Doe, No. 1-05-CV-053609, 2006 WL
6080949 (Cal. Super. Ct. Santa Clara Cnty. Mar. 15, 2006).
Plaintiff company in a Minnesota breach of employment
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contract action subpoenaed Yahoo to discover the identity of
an anonymous online commenter, and the commenter filed a
motion to quash the subpoena. The plaintiff believed the
anonymous poster was one of its employees who had
published confidential information on a Yahoo message
board shortly after a meeting at the company’s offices.
Relying upon the Northern District of California’s decision
in Highfields Capital Management—as well as Rancho
Publications v. Superior Court, 81 Cal. Rptr. 2d 274 (Ct.
App. 1999) and the New Jersey appellate court opinion in
Immunomedics—the court held that “[p]laintiff has made a
prima facie showing that Defendant violated an employment
contract by declaring that all employees are bound by a
confidentiality agreement, confidential information was
disclosed at a company meeting with employees, and that
confidential information was disclosed soon after the
company meeting raising the inference that the Yahoo
message [sic] were posted by an employee.” On this basis,
the court denied the defendant’s motion and ordered Yahoo
to comply with the subpoena.
Colorado Federal Cases

Advanced Career Technologies, Inc. v. Does 1-10, No. 13-cv00304-WJM-KLM, 2013 WL 1934005 (D. Colo. Mar. 11,
2013). See In re Subpoena of Drasin, Nos. ELH-13-1140, 13cv-00304, 2013 WL 3866777 (D. Md. July 24, 2013), infra.

Faconnable USA Corp. v. Does, 799 F. Supp. 2d 1202
(D. Colo. 2011), vacating No. 11-cv-00941-CMA-BNB,
2011 WL 2015515 (D. Colo. May 24, 2011). The district
court vacated a magistrate judge’s ruling that ordered an ISP
to produce information related to two IP addresses that
Faconnable claimed were responsible for defamatory edits to
its Wikipedia page. The magistrate judge had opined that
courts should not use “special discovery rules in cases
implicating the First Amendment,” but rather should use
existing procedures with “a heightened sensitivity to any
First Amendment implications.” The magistrate judge had
also rejected the contention that the anonymous Internet
users should be notified before their identification.
Faconnable voluntarily dismissed the case with prejudice
while objections to the magistrate judge’s decision were
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pending, but the ISP requested that the magistrate judge’s
order be vacated nonetheless because its precedent “would
put Skybeam at a competitive disadvantage to other ISPs
who operate in jurisdictions with more stringent standards
for disclosing the identities of anonymous internet speakers,
as well as endangering the rights of other Skybeam users.”
The court vacated the order.

20/20 Financial Consulting, Inc. v. Does 1-5, No. 10-cv01006-CMA-KMT, 2010 WL 1904530 (D. Colo. May 11,
2010). In this defamation suit by a company against those
who anonymously posted allegedly defamatory comments on
various websites, a magistrate judge granted a Rule 26(d)
motion to conduct expedited discovery for the limited purpose
of discovering the defendants’ identities. The judge analogized the case to Arista Records, LLC. v. Does 1-19, 551 F.
Supp. 2d 1 (D.D.C. 2008), a copyright infringement suit,
noting that “Defendants here have engaged in anonymous
online behavior, which will likely remain anonymous unless
Plaintiff is able to ascertain their identities.”

Video Professor, Inc. v. Does 1-100, No. 07-CV-01726WYD-CBS (D. Colo. filed Aug. 16, 2007). In this action for
defamation and other business torts, the magistrate issued an
order granting, without analysis, plaintiff’s ex parte motion
for an order authorizing discovery of the anonymous
defendants’ identities from third parties. Public Citizen
Litigation Group (PCLG) negotiated with the plaintiff on
behalf of one of the third party subpoena recipients, arguing
that the subpoena was invalid because it did not make the
showing necessary to unmask the anonymous posters, and
was unduly burdensome both in failing to identify which
particular posts were allegedly unlawful and because it
would impose significant costs on the third party. PCLG
notified the anonymous posters of the subpoena and its
intention to move to quash it on behalf of the third party it
represented. The plaintiff voluntarily dismissed the case on
December 26, 2007.

Warner Bros. Records, Inc. v. Does 1-20, No. 07-CV-01131LTB-MJW, 2007 WL 1655365 (D. Colo. June 5, 2007).
Applying the “good cause” standard, the court allowed plaintiffs to seek expedited discovery to identify 20 Doe defendant
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file sharers who allegedly infringed the companies’ copyrighted material.

Interscope Records v. Does 1-8, No. CIVA06CV00352
WDMPAC, 2006 WL 1351876 (D. Colo. Mar. 16, 2006).
Applying the “good cause” standard, the court allowed
plaintiffs to seek expedited discovery to identify eight Doe
defendant file sharers who allegedly infringed the companies’
copyrighted material.
Colorado State Cases

People v. Viveros, No. 10CR1482 (Colo. Dist. Ct. El Paso
Cnty. Mar. 8, 2011). Prior to his sentencing, the criminal
defendant issued a subpoena to television station KKTV and
one of its reporters seeking identifying information about
persons who had sent anonymous tips to the station via its
website, which led to defendant’s arrest and plea of guilty to
second degree murder. The tips had not been posted on the
station’s website. In an oral ruling made from the bench, the
court quashed the subpoena under Colorado’s shield law. The
court alternatively ruled that the First Amendment reporter’s
privilege also shielded the information. See Charles D. Tobin &
Drew E. Shenkman, Colorado District Court Quashes
Subpoena to TV Station for IP Address in Murder Case, A.B.A.
MEDIA, PRIVACY AND DEFAMATION LAW COMM. NEWS,
Spring 2011, available at http://americanbar.org/content/
dam/aba/uncategorized/tips/media/2011_media_spring.authc
heckdam.pdf.

Bizub v. Paterson, No. 2007CV1960 (Colo. Dist. Ct. El Paso
Cnty. Aug. 22, 2008). Plaintiff issued a subpoena seeking
the identifying information of 38 individuals who had
anonymously posted comments on the website of The
Gazette. The newspaper moved to quash on the grounds that
the subpoena was overbroad, violated the First Amendment
rights of the anonymous speakers, and violated the
newspaper’s shield law privilege. The newspaper urged the
court to require notification of the anonymous posters (and
provide an opportunity to be heard) in the event it was
inclined to deny the motion. The court quashed the
subpoena, rendering notification unnecessary.
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
People v. Bruce, No. 09M3247 (Colo. Springs Mun. Ct.
Oct. 27, 2009). A criminal defendant sought the identity of a
poster to the website of The Gazette on the basis that the
poster was an exculpatory witness. The court quashed the
defendant’s subpoena, finding that Colorado’s Press Shield
Law, Section 13-90-119(2), C.R.S., and the First Amendment barred the defendant from obtaining the anonymous
poster’s identity.
Connecticut Federal Cases

Doe I v. Individuals, 561 F. Supp. 2d 249 (D. Conn. 2008)
(also known as the “AutoAdmit” case). Two Yale law
students filed suit against 39 anonymous persons for libel,
invasion of privacy, negligent and intentional infliction of
emotional distress, and copyright violations. Plaintiffs issued
a subpoena duces tecum to an Internet service provider for
information related to the identity of one poster. The poster
responded by filing a motion to quash and a motion to
proceed anonymously. The court found that, although the
poster had a First Amendment right to speak anonymously,
this right was outweighed by plaintiffs’ need for discovery to
redress alleged wrongs. In so deciding, the court considered
(1) whether plaintiffs undertook efforts to notify the poster of
the subpoena; (2) whether plaintiffs identified the exact
statements at issue; (3) whether plaintiffs had an alternate
means of obtaining the poster’s identity information;
(4) whether there was a central need for the subpoenaed
information; (5) the poster’s expectation of privacy; and
(6) whether plaintiffs had made “a concrete showing as to
each element of a prima facie case against the” poster.
Additionally, the court found that the poster had “not made a
showing of any substantial privacy right or of any potential
physical or mental harm as a result of being a named party
to this litigation.” The plaintiffs subsequently settled their
case against the unmasked defendant and dismissed the
action with regard to the other defendants.
Connecticut State Cases

Karnaby v. McKenzie, No. CV116025194, 2012 WL
2149457 (Conn. Super. Ct. May 10, 2012). In this action, the
plaintiff claimed that “McKenzie” defamed him on the gripe
site Ripoff Report. In an effort to give notice to “McKenzie”
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that she or he was being sued, the court directed that the
plaintiff post information about the lawsuit in response to
one of the comments posted by “McKenzie.” No response
was heard, and the court granted the plaintiff’s motion
for default. Plaintiff then moved for a permanent injunction
directing a pseudonymous commenter to remove allegedly
defamatory online posts and prohibiting him from posting
any defamatory matter about the plaintiff in the future. The
court denied the motion on the grounds that the request
constituted an extraordinarily broad prior restraint on speech
that was “difficult, if not impossible” to enforce against an
unknown defendant.

La Societe Metro Cash & Carry France v. Time Warner
Cable, No. CV030197400S, 2003 WL 22962857 (Conn.
Super. Ct. Dec. 2, 2003) (underlying defamation action filed
in France). In this action for a bill of discovery, plaintiff had
sued an ISP seeking information regarding the identity of a
subscriber who allegedly sent an anonymous email accusing
plaintiff of “underhanded and deceptive business practices.”
The ISP notified the anonymous speaker of the discovery
action, who then intervened and opposed the application for
the bill. After holding an evidentiary hearing at which both
the plaintiff and the anonymous speaker were represented,
the court granted plaintiff’s application for the bill, finding
that (1) plaintiff had established probable cause; (2) it was
seeking information regarding the anonymous speaker’s
identity in good faith and not for any improper purpose; and
(3) the information was limited in scope, “material and
necessary,” and the plaintiff had no other adequate means of
obtaining it.
Delaware State Cases

Doe v. Cahill, 884 A.2d 451 (Del. 2005). Discussed in Seminal
Decisions, supra.
District of Columbia Federal Cases

Doe No. 1 v. Burke, 91 A.3d 1031 (D.C. 2014). Plaintiff, a
human rights attorney, sued John Doe defendants for defamation and related claims based on a Wikipedia entry about
the plaintiff to which the Does contributed. Plaintiff subpoenaed Wikipedia for the Doe defendants’ identities. One Doe
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defendant filed a motion to quash pursuant to D.C.’s antiSLAPP statute, which provides that where the moving party,
resisting an effort to be unmasked, makes a prima facie
showing that his challenged speech was “in furtherance of
the right of advocacy on issues of public interest,” the
motion to quash will be granted unless the party opposing
the motion demonstrates a likelihood of success on the
merits of her underlying claim. The trial court denied the
Doe’s motion on several grounds. After holding that the trial
court’s ruling was immediately appealable under the collateral order doctrine, the D.C. Court of Appeals reversed. The
appellate court held as a threshold matter that the plaintiff
was a limited purpose public figure and that the Doe’s
speech about her was therefore entitled to the anti-SLAPP
statute’s protections. The court also held that although the
statutory definition of “an issue of public interest” excluded
“private interests, such as statements directed primarily
toward protecting the speaker’s commercial interests rather
than toward commenting on or sharing information about a
matter of public significance,” an anonymous speaker
invoking the statute is not required to affirmatively
“disprove commercial motivation,” at least “where such
motivation is not apparent from the content of the speech.”
Finally, the court held that the plaintiff had failed to rebut
the motion to quash by demonstrating she was likely to
succeed on the merits of her defamation claim. As a limited
purpose public figure, plaintiff would have to prove that Doe
acted with actual malice. The court held she was unlikely to
be able to meet this burden because Doe’s edits to the
Wikipedia entry “seem to suggest confusion or honest
mistake on [his] part,” and thus “do not suggest knowledge
of falsity or reckless disregard for whether or not the statement was false,” particularly given that after the plaintiff
advised Doe of the inaccuracies and Doe deleted them, he
did not seek to re-publish the information.

Hard Drive Productions Inc. v. Does 1-1,495, No. 1:11-cv01741, 2012 WL 3296582 (D.D.C. Aug. 13, 2012)
(Facciola, Mag. J.). In this copyright action, the magistrate
judge denied the motions to quash filed by seven anonymous
individuals, holding that “the movants lack standing to
quash a subpoena not issued to them, unless they can
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establish that the subpoena requires the production of
information that is privileged.” Id. at *3. In reaching this
ruling, the judge granted the movants anonymity pendente
lite – essentially staying an earlier ruling that “[i]ndividuals
who subscribe to the internet through ISPs simply have no
expectation of privacy in their subscriber information,” that
“any future motions received from John Does seeking to
proceed anonymously will be denied,” No. 1:11-cv-01741
(D.D.C. Dec. 21, 2011). Last, the magistrate judge held that
consideration of matters of personal jurisdiction and venue
were premature when no defendant had been named.
Plaintiff voluntarily dismissed this action without prejudice
on October 18, 2012 (dkt. 79).

In re Grand Jury Subpoena No. 11116275, 846 F. Supp. 2d
1 (D.D.C. 2012). The court denied a motion to quash a grand
jury subpoena issued to Twitter for the identity of “Mr. X,”
an individual who tweeted a message about presidential
candidate Michele Bachmann. The tweet read: “I want to
fuck Michelle Bachmann in the ass with a Vietnam era
machete.” The court ruled that the government has a
compelling interest in investigating whether the tweet was a
true threat that was sufficient to justify the subpoena. While
expressing “grave doubts about the likelihood of a grand
jury returning an indictment in this case,” the court held that
(1) the statement constituted a prima facie threat of violence
against a presidential candidate, which the government must
take seriously and investigate; and (2) the author’s identity is
essential to evaluating whether he had the necessary state of
mind for the posting to be a true threat. The court recognized
that its ruling could be used to justify subpoenas to unmask
the author of “any post containing a mere scintilla of
violence,” but asserted that, “we are nowhere near that
slippery slope,” because “an individual has made a statement
that threatens an established candidate for the presidential
nomination of one of our two major political parties, and the
government has a strong public interest in investigating that
threat, however outlandish.”

Achte/Neunte Boll Kino Beteiligungs GmbH & Co. v. Does
1-4,577, 736 F. Supp. 2d 212 (D.D.C. 2010). The district
court rejected motions to quash subpoenas seeking the
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identities of alleged copyright infringers, holding that there
is no expectation of privacy in the subscriber information
provided to one’s ISP. Plaintiff, the German entity holding
the rights to the movie version of the video game Far Cry,
sought subscriber information for the holders of IP addresses
it alleges were involved in downloading and distributing
infringing copies of the movie. The ISPs notified the
subscribers of the subpoena, and four moved to quash,
including one proceeding anonymously. The court rejected
those motions, citing three Fourth Amendment cases in
ruling that “courts have held that Internet subscribers do not
have an expectation of privacy in their subscriber information as they already have conveyed such information to their
Internet Service Providers.” In a footnote, the court also
addressed the Doe defendants’ First Amendment claims,
noting that the Sony Music case had established that
subscriber information may be discovered when the plaintiff
makes a prima facie showing of copyright infringement.

Sinclair v. TubeSockTedD, 596 F. Supp. 2d 128 (D.D.C.
2009). The plaintiff filed suit against three anonymous
Internet users, alleging defamation and reckless misrepresentation related to comments the users posted in response to
a YouTube video posted by the plaintiff. The plaintiff then
subpoenaed three Internet companies to compel the production of identifying information about the users. The court
quashed the subpoenas on three independent grounds. First,
because the citizenship of the anonymous defendants was
unknown, diversity of citizenship could not be established,
and the court lacked subject matter jurisdiction. Second, the
court found no basis to believe that the plaintiff could
establish personal jurisdiction over the defendants. And
third, the court questioned the sufficiency of the plaintiff’s
substantive allegations, thus rendering the subpoenas
deficient under the standard established by Dendrite and
Cahill.

Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1 (D.D.C.
2008). Applying the “good cause” standard established by the
Federal Rules of Civil Procedure, the court denied a motion to
quash a subpoena seeking from a university information about
the identities of nineteen Doe defendant file sharers who
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allegedly infringed the defendant-companies’ copyrighted
music. The court found that the First Amendment right to
anonymity did not mandate quashing the subpoenas because
the file sharing at issue was not “actual speech.” The court
also rejected as irrelevant the argument that the resulting
information may be unreliable.

In re Verizon Internet Services, Inc., 257 F. Supp. 2d 244
(D.D.C.), rev’d on other grounds by RIAA, Inc. v. Verizon
Internet Services, Inc., 351 F.3d 1229 (D.C. Cir. 2003),
discussed supra. The court denied Verizon’s motion to quash
a Recording Industry Association of America subpoena
seeking the identifying information of a file sharer. The court
held that Verizon had standing to assert the First Amendment
rights of its subscribers because standing requirements are
interpreted more liberally in the First Amendment context,
and because Verizon is an adequate advocate for the
subscribers where it has the type of relationship with
subscribers that “will ensure that issues will be ‘concrete and
sharply presented,’” and where it has a vested interest in
protecting the subscribers’ rights given its own interest in
maintaining and broadening its client base.
District of Columbia Cases

Solers, Inc. v. Doe, 977 A.2d 941 (D.C. 2009) (“Solers I”);
Software & Information Industry Ass’n v. Solers, Inc., No.
10-CV-1523 (D.C. Jan. 12, 2012) (“Solers II”). After an
anonymous tipster used a website reporting form to inform a
trade association that Solers was engaged in copyright
infringement, Solers filed suit against the tipster for defamation. Solers then subpoenaed the trade association, seeking
to learn the identity of the tipster. The court granted the
trade association’s motion to quash the subpoena, adopting a
modified summary judgment standard. Under this standard,
a court must: (1) ensure that the plaintiff has adequately
pleaded the elements of the defamation claim; (2) require
reasonable efforts to notify the anonymous defendant that
the complaint has been filed and the subpoena has been
served; (3) delay further action for a reasonable time to
allow the defendant an opportunity to file a motion to quash;
(4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is
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within its control; and (5) determine that the information
sought is important to enable the plaintiff to proceed with
his lawsuit. On remand, the trial court ordered the enforcement of the subpoena, and the District of Columbia Court of
Appeals, in an unpublished memorandum opinion, reversed
and remanded the case again. The appellate court held that
Solers failed a second time to put forward any evidence that
it had suffered any harm from the alleged defamation, and
thus failed to meet the fourth prong of the test. On subsequent remand, the trial court quashed the subpoena, finding
that Solers had failed to provide prima facie evidence of
harm, including general impairment to its reputation, as
required under the Solers I and II doctrine, and that it therefore could not satisfy the five required elements for unmasking an anonymous speaker. Solers, Inc. v. Doe, 42 Med. L.
Rpt. (BNA) 1488, 1491 (D.C. Sup. Ct. Mar. 18, 2014).
Unable to proceed absent the identity of defendant Doe, the
plaintiff thereafter moved to dismiss the case, and the court
dismissed the litigation with prejudice. No. 2005 CA 003779
(D.C. Sup. Ct. Apr. 11, 2014).
Florida Federal Cases

Rich v. City of Jacksonville, No. 3:09-CV-454-MMH-MCR,
2010 WL 1141556 (M.D. Fla. Mar. 23, 2010). In this Section
1983 action, a blogger alleged that law enforcement officers
opened a criminal investigation into the blogger’s anonymous
comments about a church pastor after the church asked one of
the officers—who was a member of the church—for
assistance in identifying him. The complaint further alleged
that the state attorney’s office issued subpoenas to the
bloggers ISPs, which resulted in the unmasking of the blogger
and consequent pressure by the church on the blogger and his
wife to leave the congregation. The court denied defendants’
motion to dismiss in part, holding that the blogger had stated
a claim, inter alia, for a violation of his constitutional right to
speak anonymously.
Florida State Cases

Comins v. VanVoorhis, 135 So. 3d 545 (Fla. Dist. Ct. App.
2014). Affirming the trial judge below, a Florida appellate
court rejected a defamation plaintiff’s argument that the
defendant blogger waived the protections of Florida’s
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retraction statute by writing under a pseudonym. The defendant had used his real first initial and middle name on his
blog but a slightly different last name to protect his identity.
Although the plaintiff complained about the blog to the
university where the blogger was a graduate student and
which hosted the blog on its servers, the court held that that
complaint did not comply with Florida’s retraction statute,
which requires a plaintiff to notify media defendants with
details of the allegedly false and defamatory statements
before filing suit. The plaintiff argued, inter alia, that the
blogger had waived any protection of the statute by
attempting to shield his identity. The appellate court
disagreed, noting that “it was not very difficult to find and to
communicate with [the defendant] VanVoorhis” and that
“[f]ailing any other alternative, Comins could have posted a
retraction notice in the comments section of VanVoorhis’s
blog.” In reaching this conclusion, the appellate court also
agreed with the trial court that the blog qualified as a media
outlet, triggering the notice requirement.

Costello v. SuperValu Inc., No. 41-2009-CA-001150, 38
Media L. Rep. (BNA) 2407 (Fla. Cir. Ct. Manatee Cnty.
Aug. 30, 2010). The trial court quashed a subpoena to the
Bradenton (Fla.) Herald seeking the names of anonymous
commenters to articles about an underlying civil lawsuit.
The defendants claimed that the commenters could have
information about the case, which accuses a grocery store of
selling alcohol to an underaged friend of the plaintiff who
drove off a bridge while drunk, killing the friend and
severely injuring the plaintiff. The court held that Florida’s
Shield Law protected the newspaper from compelled
identification of the commenters, reasoning that unmasking
anonymous commenters on a newspaper’s website “would
have the same chilling effect” as discovery demands seeking
the identities of a journalist’s sources. The court also relied
on 2TheMart, which also involved third-party commenters,
in concluding that “the anonymity of online commenters
ought to be maintained absent a clear and specific showing
by the subpoenaing party of a compelling need for the
information, and that the information is relevant to an issue
in the case and is not available elsewhere.” The court held
that the subpoena in this case failed the test.
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
Beal v. Calobrisi, No. 08-CA-1075 (Fla. Cir. Ct. Okaloosa
Cnty. Oct. 9, 2008). A Florida circuit court granted a third
party newspaper’s motion to quash a subpoena seeking the
identifying information of an anonymous poster to the
newspaper’s website, holding that the Florida Shield Law
applied and created a qualified privilege against compelled
disclosure of the information.
Idaho Federal Cases

Cornelius v. Deluca, No. 1:10-CV-027-BLW, 2011 WL
977054 (D. Idaho Mar. 15, 2011), amending 2010 WL
4923030 (D. Idaho Nov. 29, 2010). Relying on the Ninth
Circuit’s modification of its opinion in In re Anonymous
Online Speakers, 661 F.3d 1168 (9th Cir. 2011), the district
court amended an earlier order in which it had ordered
Bodybuilding.com to disclose the identity of an anonymous
moderator on the site who used the handle “INGENIUM.”
Plaintiffs, including SI03, Inc., alleged the moderator was a
representative of Bodybuilding.com and sought to hold the
website liable for INGENIUM’s disparaging comment about
plaintiffs’ product. In concluding that plaintiffs were not
entitled to the moderator’s identifying information, the court
balanced the moderator’s First Amendment rights with
plaintiffs’ need for the discovery, noting that “[t]he Ninth
Circuit has not yet adopted a magic formula for balancing
the need for discovery and the right to anonymous speech”
but that the “degree of scrutiny the Court applies in
balancing these competing interests varies pending on the
circumstances and the type of speech at issue.” First, the
court determined that the post at issue was “deserving of
more protection than mere commercial speech but less than
speech that lies at the heart of First Amendment values, such
as religious or political speech.” The court reasoned that,
although the post “refer[red] to a specific product,” it did
“not merely propose a commercial transaction” under Bolger
v. Youngs Drug Products Corp., 463 U.S. 60, 67 (1983).
Second, the court concluded that, in this action where the
poster was a nonparty, plaintiff “must clear an extra-high
hurdle to justify the disclosure” but had failed to do so
because plaintiffs failed to even attempt to rebut evidence
presented by Bodybuilding.com that site moderators, like
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INGENIUM, were unpaid volunteers selected by other
posters. Third, the court found INGENIUM had an
expectation of privacy based on Bodybuilding.com’s Terms
of Service and Privacy Policy. On June 1, 2011, the court
granted Bodybuilding.com’s motion for summary judgment
because SI03 presented no evidence that INGENIUM was
an agent or representative of Bodybuilding.com.

SI03, Inc. v. Bodybuilding.com, LLC, 07-mc-06311-EJLLMB (D. Idaho Mar. 23, 2010) (dkt. 68), vacated by SI03,
Inc. v. Bodybuilding.com, LLC, 441 F. App’x 431 (9th Cir.
2011) (unpublished and nonprecedential), on remand, No.
07-6311-EJL (D. Idaho Apr. 11, 2013), discussed supra.

In re Subpoena Issued Pursuant to the Digital Millennium
Copyright Act to: 43SB.com, LLC, No. MS07-6236-EJL,
2007 WL 4335441 (D. Idaho Dec. 7, 2007). An anonymous
individual posted comments to a website, 43SB.com, regarding a company and its CEO. The general counsel for the
company sent a cease and desist letter to the website, asking
that the comments be removed. Instead, a second anonymous individual posted the letter to the website. The
company responded by serving a pre-litigation Digital
Millennium Copyright Act (DMCA) subpoena on the
website, asserting that the posting of the letter constituted
copyright infringement and seeking identifying information
about both anonymous individuals. The website filed a
motion to quash, which the court granted as to the poster of
the comments, but denied as to the poster of the letter,
holding that that the company had pleaded a prima facie
case of copyright infringement as to the latter but not as to
the former.
Idaho State Cases

Jacobson v. Doe, No. CV-12-3098 (Idaho Dist. Ct. Kootenai
Cnty. July 10, 2012). The plaintiff, the chair of the Kootenai
County Republican Central Committee (KCRCC), sued an
anonymous commenter to HuckleberriesOnline, a blog
maintained by the Spokesman-Review newspaper, for
allegedly implying that plaintiff embezzled $10,000 from
the KCRCC. The plaintiff subpoenaed the newspaper for,
inter alia, identifying information for the commenter and
two others who posted to the blog. The newspaper moved to
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quash the subpoena, relying on both the common law Idaho
reporter’s privilege and the Dendrite/Cahill tests. As a
matter of first impression, the court held that the reporter’s
privilege, as recognized by the Idaho Supreme Court, did not
apply where the reporter invoking the privilege “was
not acting as a reporter when the statements were made, but
instead was acting as a facilitator of commentary and
administrator of the Blog,” the newspaper did not view the
comment as “newsworthy,” and the newspaper did not
intend “to use the information [in the comment] to create a
news story or editorial opinion.” The court further held that,
as to the commenter, the plaintiff satisfied the modified
Dendrite/Cahill summary judgment test set out in SI03, Inc.
v. Bodybuilding.com, LLC, 07-mc-06311-EJL-LMB (D.
Idaho Mar. 23, 2010) (dkt. 68). (No mention was made of
the Ninth Circuit ruling, discussed supra, that reversed and
remanded the decision in SIO3.) The court found that the
commenter’s statement constituted defamation per se and
that the plaintiff provided evidence that the statement was
communicated to third parties and damaged her reputation.
The court also noted that the commenter’s recantation of the
statement was adequate evidence of actual malice. The court
quashed the portion of the subpoena seeking identifying
information as to two others who posted to the blog because
“Summary Judgment may only be had between parties to an
action, not between a party and a witness,” such as these other
individuals, and therefore “the Plaintiff cannot meet this step
of the [SIO3] test.” No appeal was taken, and the commenter
subsequently identified herself as a political activist aligned
with an opposing faction of the local GOP. See Meghann M.
Cuniff, Blog Commenter Reveals Identity, THE SPOKESMANREVIEW (July 24, 2012), http://www.spokesman.com/stories/
2012/jul/24/blog-commenter-reveals-identity/.
Illinois Federal Cases

First Time Videos, LLC v. Does 1-500, 276 F.R.D. 241
(N.D. Ill. 2011). Plaintiff adult content producer filed a
copyright infringement action against 500 anonymous
individuals who allegedly downloaded plaintiff’s content
using BitTorrent. The court denied motions to quash, sever
and dismiss filed by several of the defendants, holding that
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(1) under Sony, defendants’ conduct is not protected by First
Amendment; (2) the Electronic Communications Privacy
Act (ECPA) does not prohibit the ISPs from disclosing
identifying information to the nongovernmental entities
requesting it; (3) “Internet subscribers do not have a
reasonable expectation of privacy in their subscriber
information—including name, address, phone number, and
email address—as they have already conveyed such
information to their ISPs” and thus their identifying information is not “privileged” under the terms of Fed. R. Civ. P.
45(c); (4) defendants’ personal jurisdiction motions were
premature; (5) joinder of the defendants – who each
downloaded one of eight different works – was proper.

SI03, Inc. v. Does 1-31, No. 1:07-cv-03266 (N.D. Ill. filed
June 11, 2007, stayed Nov. 18, 2008). This action for
defamation, commercial disparagement, trade libel, tortious
interference, and other torts, filed by a nutritional supplement
maker against 31 John Does and 5 Doe companies was stayed
pending the outcome of plaintiff’s motion to compel in SI03,
Inc. v. Bodybuilding.com, LLC, 07-mc-06311-EJL-LMB
(Mar. 23, 2010) (dkt. 68), which was vacated and remanded
by SI03, Inc. v. Bodybuilding.com, LLC, 441 F. App’x 431
(9th Cir. 2011).

Anderson v. Hale, No. 00 C 2021, 2001 WL 503045 (N.D. Ill.
May 10, 2001). In a suit seeking compensation for physical
injury against a member of a white supremacist group, the
plaintiff served subpoenas on four ISPs in order to obtain
information about certain email accounts used by group
members. The defendant and a non-party white supremacist
group filed a motion to quash. Applying NAACP v. Alabama
ex rel. Patterson, 357 U.S. 449 (1958) and Black Panther
Party v. Smith, 661 F.2d 1243 (D.C. Cir. 1981), vacated, 458
U.S. 1118 (1982), the court granted the motion as to those
individuals whose identities were not publicly known. The
court concluded that the information sought in the subpoenas
would reveal the identity of anonymous members and thus
directly chilled their First Amendment associational rights,
and that the plaintiff had not satisfied his burden of
demonstrating the relevancy of the information sought to the
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claims asserted. The court then denied the motion as to the
accounts of publicly known members of the group.
Illinois State Cases

Hadley v. Doe, 12 N.E.3d 75 (Ill. App. Ct. 2014), modification denied (June 10, 2014). Plaintiff filed a petition for preaction discovery seeking the identity of an anonymous
commenter to an online news article. The court held as a
preliminary matter that the commenter had standing to
challenge the request for an order requiring Comcast to reveal
his identity. The court then applied to the petition the tests set
forth by the appellate courts in Stone v. Paddock Publications,
Inc., 961 N.E.2d 380 (Ill. App. Ct. 2011), and Maxon v.
Ottawa Publishing Co., 929 N.E.2d 666 (Ill. App. Ct. 2010),
which require that a plaintiff seeking pre-action discovery
adequately plead a cause of action for defamation. The
plaintiff must “allege facts demonstrating” the elements of a
defamation claim and that certain defenses, such as opinion
and the innocent construction rule, do not constitutionally
prohibit recovery—a requirement the court suggested protects
“[a]nonymous speech[,] a long-protected right of citizenship.”
The court concluded that the challenged statements before it,
including that the petitioner “is a [Jerry] Sandusky waiting to
be exposed,” were neither opinion nor subject to an innocent
construction, and that the plaintiff had therefore stated an
adequate case entitling him to early discovery.

Brompton Building LLC v. Yelp!, Inc., 41 Media L. Rep.
(BNA) 1476 (Ill. App. Ct. Jan. 31, 2013) (unpublished and
nonprecedential). The appellate court affirmed the dismissal
of a petition for pre-suit discovery seeking identifying information regarding a person who posted criticism of an apartment building’s management agent on a consumer review
site. Following Illinois precedent on the issue, the court held
that the plaintiff did not make sufficient factual allegations
required to support a cause of action for defamation. The
court held that the poster’s complaints that she was improperly charged a late rent fee were not defamatory as a matter of
law because they constituted the author’s opinion. Further,
because the post mentioned the building’s former management firm by name as the target of the complaints and only
mentioned plaintiff—the building’s owner—in passing, the
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allegedly defamatory portions of the post were not “of and
concerning” the plaintiff.

Stone v. Paddock Publications, Inc., 961 N.E.2d 380 (Ill.
App. Ct. 2011). Following the lead of another intermediate
Illinois appellate court (in Maxon v. Ottawa Publishing,
infra), a state appellate panel held that a plaintiff seeking
pre-lawsuit discovery to identify a potential defamation
defendant must plead sufficient facts to establish each
element of the claim. The court reversed a trial court order
granting a subpoena to an ISP to identify a pseudonymous
commenter on a newspaper website, ruling that the
comments at issue were not defamatory as a matter of law.
The plaintiff, a local elected official, had sought the identity
of a commenter who opposed her candidacy and mocked
another commenter who turned out to be the plaintiff’s
teenaged son. The plaintiff filed an action for pre-suit
discovery under Illinois Supreme Court Rule 224, which
permits such actions to identify potential defendants. Under
that rule, the court said, plaintiffs must plead sufficient
evidence for the potential defamation lawsuit to survive a
hypothetical motion to dismiss. Because Illinois requires
fact pleading rather than notice pleading, this standard
protects anonymous speakers better than a motion-todismiss standard in a notice pleading state, the court held.
“To survive a motion to dismiss, the plaintiff must allege
specific facts supporting each element of his cause of action
and the trial court will not admit conclusory allegations and
conclusions of law that are not supported by specific facts,”
the court said. “In contrast, the modified summary judgment
standard would permit a petitioner to obtain the anonymous
person’s identity without even providing allegations in
support of certain elements where the evidence pertaining to
such elements was in control of the anonymous person.”

Maxon v. Ottawa Publ’g, 929 N.E.2d 666 (Ill. App. Ct. 2010).
Here, an Illinois appellate court reversed the trial court’s
denial of petitioners’ motion to compel a newspaper to
disclose the identifying information of individuals who posted
allegedly defamatory comments to its website. The court held
that a state procedural rule—Illinois Supreme Court Rule 224,
which authorizes independent actions for the discovery of the
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“identity of one who may be responsible in damages”—
coupled with the motion to dismiss standard, provides
sufficient protection for the right to speak anonymously. In so
doing, the court rejected the trial court’s application of the
higher-burden Dendrite/Cahill standard. The court observed
that “Illinois is a fact-pleading jurisdiction . . . . [I]f a
complaint can survive a motion to dismiss, it is legally and
factually sufficient and should be answered.” Because it
found that the plaintiffs had alleged sufficient facts in their
complaint to make out a claim for defamation, the court
granted the plaintiff’s motion to discover the identity of the
anonymous posters.

People v. Hyde, No. 09 CF 2305 (Ill. Cir. Ct. Lake Cnty. May
17, 2011). The judge overseeing a municipal corruption case
quashed the defendant’s subpoena seeking the identities of all
commenters to a local newspaper website’s articles about the
case. In her motion, the defendant argued she was entitled to
determine whether one of the commenters was a potential
prosecution witness and to use his postings to show bias. The
prosecution’s motion to quash argued, among other things,
that granting the subpoena “would inevitably have a chilling
effect upon those individuals who choose to exercise their
right to free speech in an anonymous on-line forum.” Ruling
from the bench, the judge explained that the defense had not
shown the information was essential and had not exhausted
other means of showing the witness’ bias. See Transcript of
Oral Argument at 17:23-23:14, No. 09 CF 2305 (filed May
26, 2011); Tony Gordon, Evidence in Theft Case May Have
Been Altered, Prosecutors Say, DAILY HERALD (May 17, 2011,
7:15 PM), http://www.dailyherald.com/article/20110517/
news/705179839/.

Alton Telegraph v. Illinois, No. 08-MR-548, 37 Media L.
Rep. (BNA) 2084 (Ill. Cir. Ct. Madison Cnty. May 15,
2009). The court applied the Illinois Shield Law to partially
quash a government subpoena in a criminal case seeking a
local newspaper’s records leading to the identity of five
anonymous posters to the newspaper’s website. Although
the court strongly suggested that the statute’s definition of
“source” did not include individuals who voluntarily post
information in response to an article, the court applied the
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shield law in the case and invited the legislature to clarify
the issue. Finding that two of the posters’ comments related to
“the Defendant’s prior conduct, his propensities for violence,
and relationship with the child,” the court concluded that the
prosecution had overcome the shield law privilege as to those
two posters because “the information sought is relevant, . . .
all sources of information have been exhausted” since the
prosecution had already conducted 117 interviews, “and first
degree murder of a child impacts the public interest.” The
court quashed the subpoena as to the remaining three posters
because it found their comments “appear[ed] to be nothing
more than conversation/discussion.”
Indiana State Cases

Indiana Newspapers, Inc. v. Miller, 963 N.E.2d 534 (Ind. Ct.
App. 2012). The Indiana Court of Appeals held that an
anonymous commenter to a newspaper website was not a
source whose identity was protected by Indiana’s Shield
Law, but concluded that a qualified privilege—based in both
the Indiana and federal constitutions—applies to anonymous
online speech. The plaintiff—the former head of Junior
Achievement of Central Indiana and of an associated
fundraising foundation—sued the nonprofits and their
respective presidents for defamation, claiming he was
falsely accused of misappropriating funds. The plaintiff filed
a motion to compel The Indianapolis Star to provide
identifying information about a person who posted a
comment on the newspaper’s website in response to an
article about an investigation of possible financial
improprieties at JA. The plaintiff claimed he was defamed
by the comment, which said investigators “need to look at
the FORMER president of JA and others on the [foundation]
board. The ‘missing’ money can be found in their bank
accounts.” The appeals court rejected the Star’s argument
that the commenter’s identity was protected by the state
Shield Law, which prohibits the forced disclosure of the
identity of any source of any information provided to any
newspaper employee. The court said the Shield Law was
inapplicable because the comment was an unsolicited post in
response to the newspaper’s article and the paper did not use
the comment in any of its subsequent reporting on the
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controversy. The court went on to consider the proper
balance between a plaintiff’s right to pursue a defamation
claim and Internet users’ rights to anonymous speech,
applying a modified version of Dendrite test and requiring
the plaintiff “to produce prima facie evidence of every
element of his defamation claim that does not depend on the
commenter’s identity before the news organization is
compelled to disclose that identity.” On remand, the court
ordered the newspaper to identify the poster. The newspaper
appealed this decision, but its appeal was denied for lack of
subject matter jurisdiction. 980 N.E.2d 852 (Ind. Ct. App.
2012), aff’d on reh’g (Jan. 18, 2013), and transfer granted,
opinion vacated, 987 N.E.2d 70, vacated, 994 N.E.2d 731,
and opinion reinstated, 994 N.E.2d 731 (Ind. 2013).

Roman Catholic Archdiocese of Indianapolis v. Doe, No.
49D120805-CT-20862 (Ind. Super. Ct. Marion Cnty. May 9,
2008). The court issued a temporary restraining order
directing Facebook to preserve and produce identifying
information regarding the creator of a Facebook page in the
name of a high school dean when the creator used the page
to “transmit[] and publish[] false and misleading information
of and concerning [the dean] and the Archdiocese.”
Kansas Federal Cases

Interscope Records v. Does 1-14, 558 F. Supp. 2d 1176
(D. Kan. 2008) (Sebelius, Mag. J.). Plaintiff record company
subpoenaed the University of Kansas to reveal identities of
Doe defendants who were allegedly using peer-to-peer
software to distribute copyrighted music. The court applied
the Sony test to conclude that disclosure should be ordered
and thus denied the Doe defendants’ motion to quash the
subpoena. The court rejected defendants’ argument that the
University was prevented from revealing the information
under the Family and Education Right and Privacy Act of
1974, 20 U.S.C. § 1232g, noting that the statute contains
explicit provisions that allow the release of information in
response to a court order.
Kansas State Cases

In re Inquisition into the Offense of Interference with the
Judicial Process in Violation of K.S.A. 21.5905(a)(6)(C)
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(State v. Stovall), No. 12-IQ-50 (Kan. Dist. Ct. Shawnee
Cnty. Oct. 26, 2012), available at http://cjonline.com/
sites/default/files/SKMBT_42112103015440.pdf. A state trial
court held that a newspaper was entitled to invoke Kansas’
statutory journalists’ privilege and the First Amendment in a
motion to quash a subpoena seeking an online commenter’s
anonymity, but ruled that prosecutors had made a sufficient
showing to overcome those privileges because the
commenter was suspected of being a sitting juror in a
murder case. During the murder trial, someone posted
comments to at least one article about the case on the
Topeka Capital-Journal’s website that suggested the
commenter was a juror. After a juror suspected of making
the comments invoked his Fifth Amendment rights against
self-incrimination, prosecutors opened an inquisition
proceeding to pursue a potential prosecution for felony
interference with the judicial process, and issued a subpoena
to the newspaper seeking identifying information about the
commenter, including the IP address from which the
comments originated. The newspaper filed a motion to quash,
citing its privileges under the First Amendment and Kansas’
journalists’ shield law, which protects from disclosure “any
information gathered, received or possessed by a journalist,
whether or not such information is actually published.” The
trial judge held that prosecutors had satisfied the three
statutory requirements to overcome the privilege: That
the information sought was material and relevant to the
proceedings; the information could not, after reasonable
effort, be obtained by alternative means; and the information
was “of a compelling interest.” The court held that
questioning the other jurors in the case, the alternative means
suggested by the Capital-Journal, was not “readily
available” because it would improperly add to the burdens of
jurors who had already endured a month-long trial. The
court also rejected the newspaper’s invitation to rely on
Dendrite and require notice to anonymous commenters of
subpoenas seeking their identities, holding that Dendrite was
neither binding nor persuasive, given the cases’ different
procedural postures.
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Kentucky State Cases

Doe v. Coleman, — S.W.3d —, 2014 WL 2785840 (Ky. Ct.
App. June 20, 2014). In a case of first impression,
Kentucky’s intermediate appellate court adopted the Cahill
standard for determining whether the court should quash a
subpoena seeking identifying information regarding anonymous online speakers—in that case, two anonymous authors
of allegedly defamatory postings regarding the chairman of a
county airport board, an appointed government official, on a
Topix website. The court held that Cahill’s modification of
the Dendrite standard “strikes the proper balance between the
First Amendment right to engage in protected anonymous
speech and the right to seek legal redress for actionable
defamatory speech.” The court held that a plaintiff seeking
disclosure of the identity of a person responsible for allegedly defamatory Internet speech must first make “reasonable
efforts” to notify the subject of the subpoena and then “set
forth a prima facie case for defamation” under Kentucky’s
summary judgment standard, “to the extent those elements
are under [the plaintiff’s] control.” Thus, the court held, a
public figure plaintiff must plead facts sufficient to show
that the language at issue is facially defamatory and false.
The court remanded the case and instructed the trial court to
apply this standard.

Clem v. Doe, No. 08-CI-1296 (Ky. Cir. Ct. Madison Cnty.
Mar. 26, 2010). In this defamation action brought against an
anonymous commenter on a newspaper website, the newspaper moved to quash a subpoena seeking the commenter’s
identity. The newspaper asserted both the state shield law,
KRS 421.100 (“No person shall be compelled to disclose . . .
the source of any information procured or obtained by him,
and published in a newspaper . . . by which he is engaged or
employed, or with which he is connected”), and the
commenter’s First Amendment right to anonymity. The
court determined that the comment was not “procured or
obtained by any reporter” under the terms of the shield law
because the newspaper website’s terms of service stated that
the content of such comments was “not controlled by the
newspaper” and “the newspaper does not take any responsibility for the accuracy of the contents of the web posting.”
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Under these circumstances, the court concluded, application
of the shield law “would well extend the purpose of the
privilege.” Next, noting that the case raised an issue of first
impression in the Kentucky courts, the court applied the test
established by the D.C. Court of Appeals in Solers, Inc. v.
Doe, 977 A.2d 941 (D.C. 2009) and concluded that, because
the plaintiff had not made “reasonable efforts to notify” the
commenter of the complaint and subpoena, the motion to
quash should be granted.
Louisiana Federal Cases

In re Baxter, No. 01-00026-M, 2001 WL 34806203 (W.D.
La. Dec. 20, 2001). A university vice-president applied for an
order to obtain discovery from a website host regarding the
identities of “authors, editors and publishers” of allegedly
defamatory statements made on the website. The website host
agreed to provide the information to plaintiff upon court
order, and one of the anonymous defendants moved to intervene. The court, after evaluating the tests applied by other
courts, applied a “reasonable probability or a reasonable
possibility” of success on the merits standard. Under this
standard, a plaintiff must show a “reasonable probability” of
prevailing on the merits if the challenged speech is on a
matter of private concern, and a “reasonable possibility” of
success on the merits if the challenged speech is on a matter
of public concern. (The court noted that “[a]lthough a
‘reasonable probability’ would be the preferred standard [in
all cases], requiring a standard higher than a reasonable possibility of recovery is unworkable in cases where the plaintiff is
a public figure” and thus must prove actual malice.) The court
held that because plaintiff met these requirements, “mover is
not entitled to assert the defense that the statements were
privileged as free speech protected by the First Amendment,”
and because they were not so protected, “neither does the
mover have a right under the First Amendment to proceed
anonymously by way of intervention.”
Louisiana State Cases

In re Identity Theft, Temp. No. 5018 (La. Dist. Ct.,
Terrebonne Parish Oct. 26, 2009). A Houma Courier reader
anonymously posted comments to the newspaper’s Internet
forum stating that an investigation had determined that a local
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chiropractor had engaged in inappropriate billing practices.
Although the chiropractor believed he knew who posted the
comments, and gave that person’s name to the sheriff, the
district attorney nonetheless moved the court for issuance of a
subpoena to the newspaper to provide identifying information
about the poster in connection with a prosecution of the poster
for criminal defamation. The court rejected the newspaper’s
arguments against the motion, including its advocacy of the
Dendrite test, its argument that the criminalization of
defamation is unconstitutional, and its argument that the
district attorney or sheriff should at least be required to
question the person identified by the chiropractor before
requiring the newspaper to reveal its website commenter’s
identity. The court stated from the bench that “I don’t think
that an individual can just go and publish what they want
and expect to be protected” and held that the fact that poster
made “specific factual allegations” about the chiropractor
sufficed to require that that newspaper divulge the poster’s
identity. The newspaper advised the poster of the ruling, and
the poster did not object to the newspaper’s release of his
identity to the district attorney.
Maine State Cases

Gunning v. Doe, No. CV-13-359 (Me. Super. Ct. Cumberland
Cnty. Mar. 21, 2014). A town council candidate in Freeport,
Maine commenced a suit for defamation and related claims
against a John Doe defendant in Maine state court in
connection with articles published on a parody site called The
Crow’s Nest. After a California trial court quashed a
subpoena to third party Automattic, Inc. that was intended to
discover the identity of the author of the allegedly defamatory
articles, see supra, In re Doe I, No. CPF 13 513271, the
plaintiff moved the Maine court for leave to effect service via
John Doe’s counsel. The Maine court reportedly denied the
motion on the grounds that alternate service would not
provide the plaintiff with the defendant’s identity, given that
counsel could not be required to divulge the defendant’s
name.

Fitch v. Doe, 869 A.2d 722 (Me. 2005). Plaintiff sued a
Doe defendant who allegedly sent an email to others
purporting to be from plaintiff. The suit asserted claims for
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misappropriation of identity and several other torts, and
plaintiff sought discovery of the defendant’s identity from his
ISP, Time Warner. The Doe defendant opposed the discovery
effort, but not on First Amendment grounds. The court
affirmed the order granting the discovery on the ground that
Section 551(c)(2)(B) of the Cable Act authorized the
disclosure by a cable operator of subscribers’ identifying
information pursuant to court order provided that notice is
provided to the subscriber. The court held the Doe defendant
waived his constitutional arguments, having never raised
them in the trial court.
Maryland Federal Cases

In re Subpoena of Drasin, Nos. ELH-13-1140, 2013 WL
3866777 (D. Md. Jul. 24, 2013). After pre-service discovery
was authorized on a good cause standard in a District of
Colorado action, plaintiff-corporation—a career guidance
service firm that alleged it had been defamed by approximately 350 anonymous comments posted on a blog—issued
subpoenas to the administrator of the blog, Drasin, who
resided in Maryland. The subpoenas sought the “true name,
address, telephone number, e-mail address, and Media
Access Control address” of individuals using certain IP
addresses to post or edit the comments. The court provided
one comment as an example: “Scam Scam Scam . . . These
guys are toilet slime bags. STAY AWAY FROM THESE
FRAUDS.” The administrator moved to quash the subpoenas,
asserting the First Amendment rights of the Does. The
District of Maryland court agreed that the administrator had
standing to so move, but denied the motion on a number of
grounds. The court reasoned that (1) the plaintiff submitted
evidence of financial damages caused by the comments; (2)
the plaintiff needs the identities of the commenters to pursue
claims against them; (3) because the comments are “of a
commercial nature,” the plaintiff’s interest in disclosure
“clearly outweigh[ed] the Doe defendants’ limited First
Amendment right of anonymity”; (4) the plaintiff demonstrated notice was posted on the blog; (5) the allegedly
defamatory posts were adequately identified; and (6) the
court should “not second-guess” the District of Colorado’s
“determin[ation] that ACT is entitled to expedited
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discovery.” The court did not explain its conclusion that the
comments constituted commercial speech, and, although
suggesting that it was applying the test set out in Independent Newspapers, Inc. v. Brodie, infra, the court did not
determine whether the complaint had set forth a prima facie
defamation action, stating only that the comments were
“offensive.” The plaintiff subsequently issued a third
subpoena to Drasin, seeking hard drives and servers used to
administer the blog. The District of Maryland quashed that
subpoena on grounds of undue burden on February 12, 2014
(dkt. 14). The plaintiff subsequently amended its complaint
in the District of Colorado action to add Drasin as a
defendant. Advanced Career Technologies, Inc. v. Does 110, No. 13-cv-00304-WJM-KLM (D. Colo. Apr. 2, 2014)
(dkts. 25 & 26). The original District of Colorado order
authorizing discovery can be found at id., 2013 WL 1934005
(D. Colo. Mar. 11, 2013).
Maryland State Cases

Independent Newspapers, Inc. v. Brodie, 966 A.2d 432 (Md.
2009). A local business owner commenced a defamation
action against a newspaper and three anonymous posters to
the newspaper’s website. The newspaper filed a motion for
protective order to shield it from complying with the
business owner’s requests for identity information regarding
the posters. The trial court denied the motion, and the
newspaper appealed. The Court of Appeals reversed,
adopting the Dendrite standard and holding that “when a
trial court is confronted with a defamation action in which
anonymous speakers or pseudonyms are involved, it should,
(1) require the plaintiff to undertake efforts to notify the
anonymous posters that they are the subject of a subpoena or
application for an order of disclosure, including posting a
message of notification of the identity discovery request on
the message board; (2) withhold action to afford the
anonymous posters a reasonable opportunity to file and
serve opposition to the application; (3) require the plaintiff
to identify and set forth the exact statements purportedly
made by each anonymous poster, alleged to constitute
actionable speech; (4) determine whether the complaint has
set forth a prima facie defamation per se or per quod action
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against the anonymous posters; and (5), if all else is
satisfied, balance the anonymous poster’s First Amendment
right of free speech against the strength of the prima facie
case of defamation presented by the plaintiff and the
necessity for disclosure of the anonymous defendant’s
identity, prior to ordering disclosure.” Finding that the
business owner had failed to satisfy this standard, the court
remanded with instructions to grant the protective order.
Massachusetts Federal Cases

Baker v. Does 1-10, No. 12-10434-MLW, 2012 WL
6738253 (D. Mass. Dec. 27, 2012). Citing jurisdictional
issues and First Amendment protections for anonymous
speech, the court denied a defamation plaintiff’s request for
discovery of identifying information regarding ten
anonymous defendants. Clark Baker, a private investigator
who lives in California, claimed that the ten defendants had
posted defamatory statements about him on numerous
websites. The court noted that the plaintiff’s jurisdictional
allegations raised doubts about his assertion of diversity of the
parties, given that he alleged that he “resides” in California
and that he had “tracked” three of the ten subjects’ IP
addresses to Massachusetts. The court held that the plaintiff’s
discovery request “implicates constitutional concerns”
because “subpoenas and discovery requests seeking to
identify anonymous defendants who use the internet to
publish writings or communicate information raise First
Amendment concerns including potential harassment of
speakers or silencing of speech.” Although the court held that
it could have dismissed the complaint because of the
jurisdictional flaws, it denied the discovery motion without
prejudice with leave to re-file a motion addressing “the
jurisdictional, procedural, and constitutional concerns
articulated in” Sinclair v. TubeSockTedD, 596 F. Supp. 2d
128, 132-34 (D.D.C. 2009) and McMann v. Doe, 460 F. Supp.
2d 259, 263-70 (D. Mass. 2006). The plaintiff then filed an
amended complaint naming a Massachusetts citizen as a
defendant.

London-Sire Records, Inc. v. Doe 1, 542 F. Supp. 2d 153
(D. Mass. 2008). Record companies filed suit for copyright
infringement against anonymous file sharers and sought
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identifying information from their ISPs. The court granted
two motions to quash after applying the Sony test and finding
that: (1) movants were entitled to limited protection of their
anonymity; (2) the court lacked sufficient information about
the agreement between the movants and their ISP to
determine movants’ expectation of privacy; and (3) movants
raised an issue of fact as to whether the subpoena invaded the
anonymity of non-file sharers. The court further ordered the
ISPs not to destroy the information sought.

United States v. D’Andrea, 497 F. Supp. 2d 117 (D. Mass.
2007), vacated on other grounds by 648 F.3d 1 (1st Cir.
2011). In a criminal action, the court held that a senior
administrator at the state Department of Social Services had
not violated the defendants’ Fourth Amendment rights by
accessing a password-protected website after being given the
password by an anonymous caller to a child abuse hotline.
The court found that federal courts have “uniformly
conclude[d] that internet users have no [Fourth Amendmentbased] reasonable expectation of privacy in their subscriber
information, the length of their stored files, and other
noncontent data to which service providers must have
access.”

McMann v. Doe, 460 F. Supp. 2d 259 (D. Mass. 2006). In an
action alleging invasion of privacy, defamation, and
copyright claims, plaintiff sought leave to subpoena
GoDaddy.com and Domains by Proxy, Inc. to disclose the
name of an individual who created a website in plaintiff’s
name. The court denied the motion and dismissed the action
for lack of subject matter jurisdiction because diversity
jurisdiction cannot lie when the defendant’s domicile is
unknown. In the alternative, the court held that although
there was good cause for the discovery request, the action
must be dismissed for failure to state a claim. The court
rejected the approach of applying the summary judgment
standard to the issuance of subpoenas, finding it problematic
in defamation cases because of the near impossibility of
demonstrating clear and convincing evidence and the
requisite level of fault and because a waiver of the actual
malice requirement would undermine a key protective
mechanism created by the Supreme Court. The court
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acknowledged that “it is reasonable to apply some sort of
a screen to the plaintiff's claim before authorizing the
subpoena,” and held that, “[i]n this case, a preliminary
screening of Plaintiff’s assertions show that not only could
they not pass summary judgment, but that they fail to state a
claim.” It did not, therefore, announce an alternative “test”
to be applied in all cases, but it did hold that plaintiffs bear
an “evidentiary burden.”
Massachusetts State Cases

In re Administrative Subpoena to Twitter, Inc., No.
SUCR2011-11308 (Mass. Super. Ct. Suffolk Cnty. Feb. 28,
2012), available at http://aclum.org/sites/all/files/legal/
twitter_subpoena/suffolk_order_to_twitter_20120223.pdf.
The trial court, without opinion, denied a motion to quash an
administrative subpoena issued by the Suffolk District
Attorney to Twitter seeking identifying information about
subscribers using the names “Guido Fawkes,” “@p0isAn0N,”
and “@OccupyBoston” and posts using the hashtags
“#BostonPD” and “#d0xcak3” during the second week of
December 2011. The ACLU of Massachusetts moved to
quash the subpoena and to make the associated court
proceedings public, arguing that the subpoena infringed on
the Twitter users’ rights to speak anonymously. According to
the group, the court ruled that the ACLU lacked standing to
challenge the subpoena. See Carol Rose, Sunlight Is a
Disinfectant—and This Law Stinks, ACLUM.ORG (Mar. 2,
2012, 10:31 AM), http://www.aclum.org/on_liberty_3.2.12.
Michigan Federal Cases

Woodward v. Chetvertakov, No. 2:13-cv-11943, 2013 WL
5836219 (E.D. Mich. Oct. 30, 2013). Plaintiffs sued a
website called Global Gurus, its principal, and a John Doe
defendant alleging defamation. The court granted plaintiffs
leave to effect service by email and Facebook and issue
discovery to the website’s hosting company, in advance of
the Rule 26(f) conference, which plaintiffs sought in order to
obtain contact information for the two known defendants,
and information identifying the John Doe defendant. The
hosting company did not challenge the discovery request
and instead provided the information sought in the
subpoena, after which the court approved a subpoena to
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PayPal seeking additional information regarding the John
Doe defendant. In granting this second subpoena, the court
stated that the initial discovery was only “somewhat fruitful”
in identifying this defendant who apparently had “taken
steps to stay anonymous with the use of possible fictitious
names and addresses.” The ruling did not discuss the Doe’s
First Amendment or privacy rights.

LaFace Records, LLC v. Does 1-5, No. 2:07-CV-187, 2007
WL 2867351 (W.D. Mich. Sept. 27, 2007). Members of the
music industry sought the identities of individuals who
allegedly violated their copyrights via peer-to-peer
networks. The court approved immediate discovery under
the “good cause” standard. The court stated that “good cause”
for expedited discovery in such actions is based upon: (1) an
allegation of copyright infringement; (2) the existence of a
danger that the ISP “will not preserve the information
sought”; (3) “the narrow scope of the information sought”;
and (4) a determination that expedited discovery “would
substantially contribute to moving the case forward.”

Jessup-Morgan v. America Online, Inc., 20 F. Supp. 2d 1105
(E.D. Mich. 1998). Plaintiff filed an action for breach of
contract, invasion of privacy, and related claims against
AOL after AOL disclosed her identity information to a
private party pursuant to a subpoena without notice to
plaintiff after that party alleged that plaintiff had posted
messages in her name containing invitations for sex. The
court dismissed the action in part and granted summary
judgment to AOL in part, holding that AOL did not violate
the Electronic Communications Privacy Act when it
disclosed identity information to a private party pursuant to
a subpoena, AOL did not breach the Member Agreement
with plaintiff, and plaintiff failed to state any other claim
upon which relief could be granted.
Michigan State Cases

Ghanam v. Does, 845 N.W.2d 128 (Mich. Ct. App. 2014).
The Michigan Court of Appeals held that defamation
plaintiffs seeking to unmask anonymous speakers must
make reasonable efforts to notify the putative defendant of
the pending defamation suit, and the trial court must find
that the suit could survive a motion to dismiss before
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allowing pre-suit discovery into the identity of the
defendant. The plaintiff, a city public works official, had
claimed that several anonymous defendants had defamed
him in comments to a local online forum. The plaintiff
sought to depose a former city employee he believed was
“affiliated with” the website. The trial court denied the
former employee’s motion for a protective order barring this
discovery but the appellate court reversed. First, the court
held, where the defendant is unaware of the lawsuit, the
plaintiff must make reasonable efforts to notify the
defendant about the lawsuit, such as by posting a comment
on the webpage where the allegedly defamatory statement
appeared. Second, the trial court must analyze whether the
complaint could survive Michigan’s equivalent of a motion
to dismiss—in other words, the court should ensure that the
claim is meritorious. The court stated that the previous
ruling in Thomas M. Cooley Law School v. Doe 1 (discussed
infra), which adopted a similar motion to dismiss standard
but rejected a notification requirement, did not govern
because the defendant in Cooley was already participating in
the litigation. The appellate court went on to hold that the
trial court should have dismissed the underlying lawsuit
because the statements at issue were clearly hyperbole and
thus not defamatory as a matter of law.

Thomas M. Cooley Law School v. Doe 1, No. 307426, 2013
WL 1363885 (Mich. Ct. App. Apr. 4, 2013). A law school
filed a defamation suit against an anonymous former student
who criticized the school on his blog at Weebly.com. The
Court of Appeals of Michigan held that the case was not
moot, even though Weebly had inadvertently disclosed
the poster’s identifying information to the school, because
the court could still grant effective relief through a protective
order and because this was a significant First Amendment
issue likely to recur on which the court should rule. The
court further found that the trial court had erred by adopting
the Dendrite analysis and by failing to adequately consider
whether to grant a protective order after declining to quash the
subpoena under that analysis. The court found the Dendrite
standard unnecessary because “Michigan procedures for a
protective order, when combined with Michigan procedures
for summary disposition, adequately protect a defendant’s
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First Amendment interests in anonymity.” Because Michigan
requires plaintiffs to recite the exact language of an allegedly
defamatory statement, the court explained, a trial court
hearing a motion for summary disposition (similar to a Rule
12(b)(6) motion in federal court) can determine issues of law
such as whether the language was capable of a defamatory
meaning and whether a public-figure plaintiff adequately
pleaded actual malice. Moreover, said the court, when
considering a motion for a protective order, a Dendrite-style
test would be inappropriate because the sufficiency of the
complaint is not at issue. Michigan provides great flexibility
for trial judges to enter protective orders, which can be
crafted to protect First Amendment considerations by
prohibiting the disclosure of the defendant’s identity. Thus,
imposing the Dendrite framework on Michigan courts would
“reach beyond what is constitutionally necessary to
judicially create anti-cyber-SLAPP legislation.” The court
remanded the case with instructions to the trial court to
consider whether there is good cause for a protective order
and, if so, what that order should require.

Independent Business Owners Ass’n International v.
Woodward, No. 07-08513-CZ (Mich. Cir. Ct. Kent Cnty.
May 11, 2010). In this case related to the underlying dispute
in the Ninth Circuit’s In re Anonymous Online Speakers,
supra, a Michigan trial judge rejected anonymous online
speakers’ attempt to shield their identities from discovery,
but imposed limits on how that information could be used.
The lawsuit involved claims by the successors to the Amway
multilevel marketing company that a group of former Amway
distributors had violated their contracts by spreading
confidential information and lies online to induce others to
leave the Amway fold. The anonymous speakers sought to
quash the deposition of a former employee of the defendant
company who would be asked to reveal the speakers’
identities. The court distinguished this case from Cahill,
holding that the speech involved was commercial, and thus
entitled to lesser First Amendment protection than political
speech, and the information sought was discoverable. Still,
the court recognized that some First Amendment protection
was necessary, and entered a protective order allowing only
attorneys for the parties and the speakers to attend the
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deposition and restricting the transcript to “attorneys’ eyes
only.” The court said it would consider lifting those
restrictions after the Ninth Circuit’s ruling, which was
pending at the time. The case settled in November 2010.

Quixtar, Inc. v. Does, No. 07-59739-CZ (Mich. Cir. Ct.
Ottawa Cnty. filed Oct. 8, 2007). Quixtar, a sister company
of Amway, filed suit against several John Does for postings
and comments on a variety of blogs and on YouTube. The
suit alleges that the unknown defendants are involved in a
rival organization and that the posted comments interfered
with Quixtar’s business relationships with its distributors.
News reports indicate Quixtar sought to subpoena third
parties for the anonymous defendants’ identities. There are
no decisions published by Westlaw or Lexis.
Missouri Federal Cases

Mechanical Dynamics & Analysis, Ltd. v. Google, Inc., No.
4:11-MC-59 (CEJ) (E.D. Mo. Mar. 18, 2011). The district
court rejected plaintiff’s request for pre-litigation discovery
under Federal Rule of Civil Procedure 27, which governs
depositions to perpetuate testimony, and specifically for
the issuance of subpoenas to Google for the identity of the
authors of allegedly defamatory comments about the
plaintiffs and its executives posted in 2006 and 2007 on
gripe blogs hosted by Google’s Blogspot service. The court
held that the request was improper because, inter alia, “the
purpose of Rule 27 is to prevent the loss of evidence; it is
not a means for conducting pre-litigation discovery.”

Cornelius v. Deluca, 1:09-cv-00072-RWS (E.D. Mo. filed
Dec. 2, 2008, transferred Dec. 21, 2009). This action for
defamation, commercial disparagement, trade libel, tortious
interference, and other torts, filed by a nutritional
supplement maker against a website, was transferred to the
District of Idaho on plaintiffs’ motion. See Cornelius v.
Deluca, No. 1:10-CV-027-BLW (D. Idaho), supra.

Sedersten v. Taylor, No. 09-3031-CV-S-GAF, 2009 WL
4802567 (W.D. Mo. Dec. 9, 2009). In a civil rights action
for physical injury inflicted by a police officer, a prisonerplaintiff subpoenaed The Springfield News-Leader for
identifying information about an anonymous poster to the
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newspaper’s website. Writing in response to an article about
the prosecutor’s decision to drop charges against the officer,
the poster made comments critical of the prosecutor’s office
and in support of the officer. The newspaper objected, and
plaintiff filed a motion to compel, which was denied by the
court. Noting that “a party seeking disclosure must clear a
higher hurdle where the anonymous poster is a non-party,”
the court concluded that the plaintiff could not satisfy the
2TheMart test because the evidence he intended to elicit
from the poster was cumulative of the evidence available
elsewhere. The court also squarely rejected plaintiff’s
argument that the poster had waived his First Amendment
rights pursuant to the newspaper’s privacy policy—which
stated that the newspaper reserved the right to disclose
information collected about posters “in any way and for any
purpose”—in light of the presumption against contractual
waiver of constitutional rights and the absence, in the
privacy policy, of any indication that a user might be
waiving her anonymity rights.
Missouri State Cases

Concerned Citizens for Crystal City v. City of Crystal City,
334 S.W.3d 519 (Mo. Ct. App. 2010). A leader of a citizens’
group that filed a freedom of information lawsuit against the
city and its officials refused to comply with a court order
requiring him to provide all identifying information about
those who made anonymous posts on the group’s website.
The trial court dismissed the case as a sanction for violating
the discovery order. The Court of Appeals reversed the
dismissal, holding that the subpoena was overly broad. The
court declined to reach the issue of whether the discovery
order violated the First Amendment rights of the commenters.
Montana State Cases

Vinogradov v. Montana State University-Bozeman, No. DV03-49 (Mont. Dist. Ct. Gallatin Cnty. June 5, 2009). While
seeking a new trial after losing a discrimination suit against
Montana State University (MSU), plaintiff sought documents
and testimony from a newspaper regarding the authors of
anonymous statements on the newspaper’s website. The
plaintiff alleged that the content of the statements suggested
that they were made by a juror who appeared to have
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obtained knowledge about plaintiff outside the judicial
proceedings. Although the newspaper invoked the Montana
shield law, § 26-1-902, M.C.A., the court concluded that the
plaintiff failed to satisfy the procedural requirements of
Montana Rule of Civil Procedure 27, which govern the
perpetuation of testimony.

Doty v. Molnar, No. DV 07-022 (Mont. Dist. Ct. Yellowstone Cnty. Sept. 3, 2008). In this action for defamation and
false light invasion of privacy, the plaintiff subpoenaed the
Billings Gazette for information about readers who had
commented anonymously about articles in the online
newspaper. The Gazette successfully argued that it was
privileged under Montana’s shield law from providing the
information sought. The court held that the shield law not
only affords a statutory privilege to journalists, but also, in
effect, codifies the First Amendment rights of news sources
to speak anonymously, and reflects a legislative determination that those rights outweigh the rights of civil litigants to
obtain their identities.
Nevada Federal Cases

Fodor v. Doe, No. 3:10-CV-0798-RCJ (VPC), 2011 WL
1629572 (D. Nev. Apr. 27, 2011). A geologist sued an
anonymous blogger for defamation per se, claiming the
blogger falsely implied he had aided and abetted a
Pennsylvania attorney charged in defrauding investors in a
purported oil and gas development scheme. Noting that the
Ninth Circuit has not adopted “a single standard to guide the
lower courts,” the court applied a two-part test, which it said
was set out by Highfields Capital Management, LP v. Doe,
385 F. Supp. 2d 969 (N.D. Cal. 2005), requiring “a real
evidentiary basis to believe the defendant has engaged in
wrongful conduct that has harmed the plaintiff as alleged in
the complaint” and, “[i]f plaintiff satisfies this first step, the
court must weigh the harm caused by the competing
interests.” The court found that the allegations alone set forth
the requisite “evidentiary basis” for a claim of defamation per
se. And in balancing plaintiff’s need for discovery against the
First Amendment rights involved, the magistrate judge
relied on her finding that the statements were defamatory
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per se: “There is no compelling public interest in protecting
anonymous speech of this character.”
New Hampshire State Cases

Mortgage Specialists, Inc. v. Implode-Explode Heavy
Industries, Inc., 999 A.2d 184 (N.H. 2010). The plaintiff, a
mortgage brokering and banking company, sued the operator
of a website that ranks businesses in the mortgage industry.
The website first reported that plaintiff was allegedly
engaged in improper mortgage activities and posted one of
plaintiff’s filings with state banking authorities (“the Loan
Chart”). Thereafter, an individual pseudonymously posted
allegations about plaintiff’s president. In the action, plaintiff
sought removal of the Loan Chart from the website (on the
basis that its disclosure was statutorily prohibited) and further
requested the identifying information for the individual who
provided the Loan Chart and for the pseudonymous poster.
The trial court granted plaintiff’s requests and enjoined the
website from republishing the Loan Chart and the comments
of the pseudonymous poster. On appeal, the New Hampshire
Supreme Court first vacated the trial court’s disclosure order
with regard to the source of the Loan Chart, finding that the
order failed to consider the state’s constitutional qualified
newsgathering privilege and failed to conduct any balancing
of the interests involved. Second, the court remanded the
order with regard to the unmasking of the pseudonymous
poster and ordered further proceedings consistent with the test
enunciated in Dendrite. Finally, the court held that the
injunction imposed by the trial court was an unconstitutional
prior restraint and reversed the order to the extent that it
prohibited republication.
New Jersey Federal Cases

In re Lazaridis, 865 F. Supp. 2d 521 (D.N.J. 2011). The
court granted a motion to quash a subpoena issued pursuant
to 28 U.S.C. § 1782, a statute authorizing federal courts to
assist foreign litigants in obtaining evidence inside the
United States. The applicant’s subpoena sought identifying
information—including names, email addresses and IP
addresses of anonymous website commenters—to further his
prosecution of a criminal defamation proceeding that was
underway in Greece. The subpoena was directed to a
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nonprofit group assisting victims of international child
abduction. The court analyzed the subpoena under the
framework laid out by the Supreme Court in Intel Corp. v.
Advanced Micro Devices, Inc., 542 U.S. 241 (2004), and
concluded that the subpoena was unduly burdensome
because, inter alia, the petitioner had not shown a
“compelling need” sufficient to overcome the commenters’
rights to privacy and to speak anonymously online.
New Jersey State Cases

State v. Reid, 945 A.2d 26 (N.J. 2008). In a criminal action
for second-degree computer theft, the court held that,
pursuant to the New Jersey Constitution, citizens have a
reasonable expectation of privacy in the subscriber
information provided to ISPs, but that law enforcement
officials can overcome that protection and obtain subscriber
information by serving a grand jury subpoena on an ISP
without notice to the subscriber. The court expressed no
view on the Dendrite standard but declined to extend it to
the grand jury context.

Warren Hospital v. Does 1-10, 63 A.3d 246 (N.J. Super. Ct.
App. Div. 2013). Plaintiff hospital and certain of its
employees sued Doe defendants who allegedly hacked into
the hospital email system and sent defamatory statements
about plaintiffs to all of the hospital’s employees, conduct the
court concluded “was no different than if they had broken into
[a] hospital and spray painted their messages on the hospital’s
walls.” Stating that “those who engage in this type of conduct
are [not] entitled to cling to their anonymity through a strict or
overly-formulaic application of the Dendrite test,” the court
reversed the trial court’s order quashing a subpoena seeking
the hackers’ identifying information. The court held that “[it]
is enough that plaintiffs have demonstrated (1) the speakers’
unlawful or impermissible mode of communication, and (2)
that the allegedly defamatory statements would survive a
motion to dismiss.” The court felt “little concern” for the
notion that the information sought “may lead to a discovery of
the identities of other anonymous speakers” named in the
complaint who were not accused of unlawfully hacking into a
computer system, which the court viewed as “speculative”
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and “a consequence of John Doe One and John Doe Two’s
alleged wrongdoing.”

Somerset Development, LLC v. Cleaner Lakewood, No. C119-10, 2012 WL 4370271 (N.J. Super. Ct. App. Div.
Sept. 26, 2012). A real estate developer and the corporation
of which he is the president unsuccessfully sought the
identifying information of anonymous posters who had
criticized plaintiffs on a blog hosted by Google’s Blogspot.
The developer objected to statements that he was a “rip-off
artist” and “under the table crook,” that he “short changed
the tax payers with millions,” and that he “took a piece of
township land . . . without paying for it” and was “stealing 6
million in tax dollars.” The appellate court agreed with the
trial court that the statements were hyperbolic expressions of
opinion about issues of public concern involving a public
figure. Therefore, the plaintiffs failed to meet the third prong
of the Dendrite test because they could not make out a prima
facie case of defamation.

Juzwiak v. Doe, 2 A.3d 428 (N.J. Super. Ct. App. Div.
2010). In an action for harassment and intentional infliction
of emotional distress, the appellate court reversed the trial
court’s denial of defendant’s motion to quash a subpoena to
discover defendant’s identity. Applying Dendrite, the court
held that the plaintiff had failed to offer evidence to support
a prima facie showing of intentional infliction of emotional
distress: the statements in the emails in question were not
extreme and outrageous, and the plaintiff had offered no
objective evidence that the statements had caused severe
distress. The court also held that the harassment claim failed
for similar reasons.

A.Z. v. Doe, 2010 WL 816647 (N.J. Super. Ct. App. Div.
Mar. 8, 2010). In this defamation action, a high school
student subpoenaed Cablevision to discover the identity of
the author of an anonymous email, sent to a school official,
in which the author stated that the student had engaged in
underage drinking and attached a photo of the student
participating in a drinking game. The trial judge granted the
author’s motion to quash plaintiff’s subpoena under
Dendrite, concluding that although the student had produced
prima facie evidence in support of each element of her cause
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of action, the author’s First Amendment right of anonymous
free speech outweighed the flawed evidence in support of
the student’s claim. The appellate court affirmed on a
different ground, concluding that the student had not
produced prima facie evidence of each element of her
defamation claim.

Township of Manalapan v. Moskovitz, No. MON-L-2893-07
(N.J. Super. Ct. Law Div. Monmouth Cnty. Dec. 21, 2007).
Manalapan Township sued its prior attorney for malpractice
in the town’s acquisition of polluted lands, and several
bloggers posted their opinions regarding the decision to file
suit. The township subpoenaed Google in an effort to uncover
the identity of “daTruthSquad,” a pseudonym used by a
blogger who was critical of the decision. The court granted
the anonymous blogger’s motions to intervene, to quash, and
for protective order against the township, stating from the
bench that “[t]o allow the subpoena would be [an] undue and
unjust infringement on the blogger’s First Amendment
rights.” The court noted that the plaintiff had provided no
evidence to suggest the defendant was himself the anonymous
poster. See http://www.eff.org/cases/manalapan-v-moskovitz.

Gallucci v. New Jersey On-Line, LLC, No. L-001107-07
(N.J. Super. Ct. filed Feb. 13, 2007). Plaintiff town councilman sued his ISP, alleging it revealed confidential
identifying information about him to a litigant in another
lawsuit in violation of the standard established in Dendrite
and in violation of the privacy policy of the ISP, thus
causing financial and emotional damages, including loss of
his seat on the council. Plaintiff voluntarily dismissed the
action in September 2007.

Donato v. Moldow, 865 A.2d 711 (N.J. Super. Ct. App. Div.
2005). In an action for defamation, intentional infliction of
emotional distress and “harassment” against both the
operator of a website and 40 authors of anonymous comments
on the website, the court affirmed the dismissal of the
operator pursuant to Section 230 of the Communications
Decency Act of 1996. The trial court had also quashed a
subpoena to the website operator seeking information
regarding 117 anonymous postings “because appellants
failed to comply with the procedures required by Dendrite.”
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Although that order was not on appeal, the appellate court
reaffirmed the Dendrite standard in its holding. See also
Richard L. Ravin & Van V. Mejia, Anonymous Online
Speech: New Jersey’s First Amendment Privacy Interest,
available at www.ravin.com/anonymous.html (summary of
trial court proceedings authored by counsel for some of the
Doe defendants).

Immunomedics, Inc. v. Doe, 775 A.2d 773 (N.J. Super. Ct.
App. Div. 2001). In an action for breach of contract and
loyalty and negligently revealing confidential and proprietary
information (among other claims) brought against an
anonymous poster to a Yahoo bulletin board, the court
affirmed the denial of the defendant’s motion to quash a
subpoena served on her ISP. Applying the Dendrite
standard, the court concluded that plaintiff had set forth a
prima facie case of breach of a confidentiality statement and
that the plaintiff’s right to redress outweighed defendant’s
right to anonymity.

Dendrite Int’l, Inc. v. Doe No. 3, 775 A.2d 756 (N.J. Super.
Ct. App. Div. 2001). Discussed in Seminal Decisions, supra.
New York Federal Cases

Chevron Corp. v. Donziger, No. 1:12-MC-65 LAK/CFH,
2013 WL 3228753 (N.D.N.Y. June 25, 2013). After
plaintiffs in Ecuador, represented by New York attorney
Steven Donziger, obtained an $18.2 billion judgment against
Chevron from an Ecuadorian court for damages related to
environmental harms alleged in that country, Chevron sued
Donziger and others in the Southern District of New York
for fraud and violation of RICO, claiming they engaged in a
variety of unlawful activities to extort the judgment from the
Ecuadorian court. Chevron obtained numerous email
communications in discovery in that case, and then issued a
subpoena to Microsoft seeking non-content information
about the email accounts, including the account holders’
identities. Several of these account holders, who were not
parties to the lawsuit, moved to quash the subpoena, alleging,
inter alia, that it violated their First Amendment right to
speak anonymously. The court held that the account holders
did not have standing to move to quash the subpoena because
they “have submitted no evidence that they are U.S. citizens
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or otherwise have a strong connection to this country” and
therefore “have not shown any entitlement to First
Amendment protection.” Before issuing its ruling, the court
took the unusual step of requiring the movants to re-sign their
declarations, which they had submitted using their email
addresses as their signatures, with their actual names, and
submit them to the court in camera.

In re Rule 45 Subpoena Issued to Cablevision Systems Corp.
Regarding IP Address 69.120.35.31, No. MISC 08347(ARR)(MDG), 2010 WL 2219343 (E.D.N.Y. Feb. 5,
2010) (Go, Mag. J.), adopted in relevant part by 2010 WL
1686811 (E.D.N.Y. Apr. 26, 2010). Plaintiff sought to reveal
the identity of an anonymous poster on a Yahoo forum; the
plaintiff believed that the poster was the source of allegedly
damaging comments made to a bankruptcy trustee during a
liquidation investigation in the underlying bankruptcy suit.
First, the court rejected the plaintiff’s argument that the
poster lacked standing to seek to quash the subpoena sent to
his ISP. Second, without determining what standard properly
applies, the court recommended granting the motion to
quash after considering an “adapted” version of the Sony
test, examining: “(1) the nature of the speech of the
anonymous internet user; (2) the nature and strength of
the claims or defenses of the party seeking the discovery; (3)
the importance of the identifying information to such claims
and defenses; (4) the availability of other sources of
information; and (5) the conduct and relationship of the
parties and subpoenaed party.” The court found that the
speech was expressive, not commercial; that the plaintiff’s
underlying claims depended on many other factors besides
the poster’s identity; and that there was no evidence that the
trustee relied on the poster’s statements in making his
decision. In this analysis, the court relied upon 2TheMart in
support of its conclusion and explained that a higher level of
scrutiny must be imposed before revealing the identity of
nonparties.

Advance Magazine Publishers Inc. v. Does 1-5, No. 1:09CV-10257-JGK (S.D.N.Y. Dec. 21, 2009). In this case for
copyright infringement, Advance Magazine Publishers
alleged that one or more anonymous defendants hacked into
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its servers, downloaded copyrighted material, and made that
material available on a number of websites. The plaintiff
moved for expedited pre-service discovery based on a
four-factor good cause test and argued that: (1) it properly
alleged violations of both copyright law and the Computer
Fraud and Abuse Act; (2) a danger existed that, with the
passage of time, the information sought from third parties
would be destroyed; (3) the scope of discovery was limited
to information needed to identify the defendants; and (4)
discovery would substantially move the suit forward because
the plaintiff would be able to serve the pleading on the real
defendants. The plaintiff also argued that the defendants had
a low expectation of privacy because the privacy policies of
the proposed subpoena recipients, Google and AT&T, made
clear that identifying information was collected and would
be provided in response to a court order. The court signed
the plaintiff’s proposed order without further amplification,
authorizing the subpoenas. Plaintiff subsequently voluntarily
dismissed the case.

Zherka v. Bogdanos, No. 08 CV 2062, (S.D.N.Y. Feb. 24,
2009) (partial transcript available at: http://www.citmedialaw.
org/legal-guide/legal-protections-anonymous-speech-newyork (follow “Zherka v. Bogdanos” hyperlink)). In an oral
ruling from the bench, the district court cited Dendrite in
granting a motion to quash a subpoena seeking information
about commenters on LoHud.com, the website of The
Journal News. The underlying case was one of several filed
by Sam Zherka, a strip club owner who also published a
weekly newspaper, involving competing claims of First
Amendment violations and defamation of and by local
officials in the New York suburbs. The court held that the
plaintiff failed to satisfy any of the four prongs of the
Dendrite test. For example, the court said that plaintiff likely
already knew the identities of the authors of the posts at
issue through other means and thus did not need to obtain
them from the newspaper. The court also said that in
performing the First Amendment balancing, a disclaimer on
the site saying commenters would be identified subject to a
court order “would be a factor weighing in favor of
disclosure,” while the absence of such a disclaimer would
tip the balance further in the commenter’s favor. The court
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gave plaintiff leave to re-serve the subpoena if necessary,
but the case has since settled. See Zherka v. City of New
York, No. 08 CV 9005 (LAP), 2010 WL 4537072, at *5
(S.D.N.Y. Nov. 9, 2010), aff’d, 2010 WL 4537072 (2d Cir.
2012) (noting that Zherka v. Bogdanos had been dismissed).

General Board of Global Ministries of the United Methodist
Church v. Cablevision Lightpath, Inc., No. CV-06-3669
(DRH) (ETB), 2006 WL 3479332 (E.D.N.Y. Nov. 30,
2006). A company filed suit under the Stored Communications Act, seeking from an ISP the identity of an individual
who allegedly hacked into the email accounts of seven of the
company’s employees and sent a message from one account.
Relying on Sony, the court held that there was only a
minimal expectation of privacy in the alleged tortious
conduct and the disclosure of identifying information
relating to the IP address of the hacker does not violate the
First Amendment.

Elektra Entertainment Group, Inc. v. Does 1-9, No. 04 Civ.
2289 (RWS), 2004 WL 2095581 (S.D.N.Y. Sept. 8, 2004).
Applying the Sony test, the court denied a motion to quash a
subpoena in this copyright infringement action based on
peer-to-peer file sharing.

Sony Music Entm’t Inc. v. Does 1-40, 326 F. Supp. 2d 556
(S.D.N.Y. 2004). Discussed in Seminal Decisions, supra.

In re Application of the United States of America for an
Order Pursuant to 18 U.S.C. § 2703(d), 157 F. Supp. 2d 286
(S.D.N.Y. 2001). After the court granted the United States’
application pursuant to 18 U.S.C. § 2073(d) for an order
requiring Cablevision to provide information to the government concerning a subscriber to Cablevision’s cable Internet
service, Cablevision moved to quash the order on the ground
that the portion of the order that prohibited it from
disclosing the existence of the order to the customer violated
its obligations under the Cable Communications Policy Act
of 1984. The court disagreed, holding that the Act does not
apply to disclosure of information to governmental entities
by cable companies providing Internet services.
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New York State Cases

Konig v. CSC Holdings, LLC, 112 A.D.3d 934 (N.Y. App.
Div. 2013), leave to appeal dismissed by — N.E.3d —, 2014
WL 2936237 (N.Y. July 1, 2014); Konig v. WordPress.com,
112 A.D.3d 936 (N.Y. App. Div. 2013). In a pair of cases
involving the same underlying facts, the appellate court
reversed the trial court’s grant of a motion for pre-suit
discovery of a local blogger’s identity. The petitioner, a
county board candidate, invoked New York’s statute
allowing for pre-suit discovery to seek identifying
information from the blog’s ISP and hosting service. The
candidate claimed that a contributor to the blog had defamed
her in posts discussing the Westchester County election. The
appellate court held that the politician had failed to allege
facts “fairly indicating that . . . she has some cause of
action,” a prerequisite to unmasking a potential defendant.
Specifically, the court determined the challenged statements
were not actionable because, as postings “on an Internet
blog during a sharply contested election, a reasonable reader
would have believed” that the challenged statements were
opinions.

Sandals Resorts Int’l Ltd. v. Google, Inc., 925 N.Y.S.2d 407
(N.Y. App. Div. 2011), aff’g 910 N.Y.S.2d 408 (N.Y. Sup.
Ct. N.Y. Cnty. 2010). The appellate division affirmed the
dismissal of a pre-action petition under CPLR 3102(c) to
discover the identity of an anonymous email author who
allegedly defamed resort-owner Sandals by asserting in the
email that Sandals was racist and discriminatory for hiring
non-Jamaicans for positions of authority and giving native
Jamaicans only menial jobs. The appellate court agreed with
the trial judge that the plaintiff had failed to demonstrate that
it had a “meritorious cause of action,” a requirement to
obtain early discovery under the statute. The court held after
extensive discussion of the email and its context that the
statements within it were constitutionally protected statements
of opinion. It emphasized that context matters to such an
analysis, observing that “online recipients of [offensive]
statements do not necessarily attribute the same level of
credence to the statements [that] they would accord to
statements made in other contexts” and that the same
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observation applies “as well to the type of widely distributed
e-mail commentary under consideration here.” The court
further noted that “the anonymity of the e-mail makes it
more likely that a reasonable reader would view its
assertions with some skepticism and tend to treat its contents
as opinion rather than as fact.” Finally, the court determined,
that the email was “‘pure opinion’” because it fully
disclosed all facts upon which it relied through hyperlinks.

Nanoviricides, Inc. v. Seeking Alpha, Inc., No. 151908/2014,
2014 WL 2930753 (N.Y. Sup. Ct. N.Y. Cnty. June 26,
2014). The court denied the plaintiff corporation’s motion
for pre-suit discovery of the identity of a commenter who
criticized the company in a posting on the Seeking Alpha
website. The plaintiff failed to make the “strong showing”
that it had a meritorious case, a requirement to obtain early
discovery under N.Y. CPLR 3012(c). Specifically, the court
held that the article at issue was nonactionable opinion
because it explicitly stated that it was the author’s opinion
and recited the facts, including providing hyperlinks to
referenced documents, on which the opinion was based.
Further, the court held that the context of the posting—a
website devoted to commentary regarding publicly held
companies open to postings by any pseudonymous user—
supported the determination it was opinion because “readers
are likely to give less credence to the articles found on this
website and view the assertions in the articles, like the one
herein at issue, with some skepticism and to treat its contents
as opinion rather than fact.”

Hamburg Central School District v. Stephenson, No. 20122141 (N.Y. Sup. Ct. Erie Cnty. July 16, 2013). The court
quashed a subpoena seeking information identifying a local
blogger who had posted excerpts of an allegedly unlawfullymade recording of a closed school board meeting. The
blogger, who wrote under the screen name “Concerned
Hamburger,” had posted portions of the recording after
Buffalo-area news media reported on a controversy in the
suburb regarding the recording and the meeting itself, during
which school board members expressed animosity toward
citizens critical of their decisions. The board and eight
members and school officials sued three people accused of
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being involved in making or disseminating the recording.
Plaintiffs asserted they needed to depose the blogger to learn
more about the circumstances surrounding creation of the
tape. The blogger anonymously filed a motion to quash,
arguing that the subpoena was retaliation for the blog’s
pointed criticism of the school board and would chill the
First Amendment speech and associational rights of
Concerned Hamburger and other citizens who posted on the
blog. As proof, the blogger pointed to a cease and desist
letter the board’s law firm sent to the blog that did not
mention the recording but demanded that the blog be shut
down. The court did not state its reasoning in the order
granting the motion to quash, which was issued after the
blogger denied the court’s request to learn the blogger’s
identity in camera.

Lavelle v. Gannett Satellite Information Network, Inc., No.
60310/2011 (N.Y. Sup. Ct. Westchester Cnty. May 8, 2012).
The court rejected a motion to compel a newspaper to
identify a pseudonymous commenter on its website who the
plaintiff claimed could be a third-party witness in a
defamation action. Brian Lavelle, a former Rye High School
basketball coach, sued several school officials after he was
fired and accused of taking cash and credit cards from a bag
a student had left in the school gymnasium. Lavelle
subpoenaed the publisher of The Journal News, seeking the
identity of a person who had commented about the matter on
the newspaper’s website, lohud.com. Lavelle claimed he
needed to determine the person’s identity as a step toward
proving that school officials told the commenter that there
was a video recording of Lavelle taking the items from the
bag, and thus that the school officials were responsible for
the commenter’s republication of that information. Relying
on Doe v. 2TheMart.com, the trial court held that unmasking
an anonymous online speaker who is only a non-party
witness “is only appropriate where there is a compelling
case for discovering the identity of the anonymous blogger.”
The plaintiff didn’t meet that standard, the court said,
because he failed to say why the identity of the commenter
was “integral or necessary . . . to sustain his claim.” The
court concluded: “Without a clear and compelling need for
the identity of [the commenter] this Court sees no reason to
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deprive the author of the comments of his/her anonymity as
protected by the First Amendment.”

Deer Consumer Products, Inc. v. Little, 938 N.Y.S.2d 767
(N.Y. Sup. Ct. N.Y. Cnty. 2012). A state trial court judge
denied an anonymous blogger’s attempt to shield his identity
from a defamation plaintiff, but restricted disclosures related
to his identity to the plaintiff’s lawyers, and only for the
purpose of jurisdictional discovery. The court held that the
blogger did not have a First Amendment right to shield his
identity, applying a prima facie standard based solely on the
allegations of the complaint despite stating that it should use
a balancing test that considered both the plaintiff’s claims
and the speaker’s interests in anonymity. Deer Consumer
Products, a U.S. company with a factory in China that makes
small kitchen appliances, sued pseudonymous blogger
Alfred Little over Little’s reporting that the company was
involved in questionable land dealings in China. Deer
alleged that Little’s reports were part of a “short and distort”
scheme to drive down the company’s stock price and make
profits for investors who had bet on the price decline. Little
petitioned to proceed anonymously, citing fears for his and
his associates’ personal safety because of previous threats
and violent incidents stemming from his criticism of other
companies, as well as general “abuses of authority and lack
of rule of law” in China. Although the court held that
Little’s affidavit was not sufficient evidence to allow him to
proceed anonymously, the judge credited his fears of
violence enough to order that discovery continue only on the
issue of personal jurisdiction and that identifying information be provided only to Deer’s attorneys.

Tendler v. Bais Knesses of New Hempstead, Inc., No. 22842006 (N.Y. Sup. Ct. Rockland Cnty. Nov. 16, 2011),
available at http://www.citizen.org/documents/Tendler-vDoe-Order.pdf. The judge quashed subpoenas seeking the
identities of four anonymous Internet speakers who were
non-party witnesses to a former rabbi’s lawsuit against the
congregation that fired him. Mordechai Tendler was ousted
after reports surfaced that he had affairs with several female
members of his congregation. After the court had found for
the plaintiff on liability for his breach of contract claim
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against the synagogue, Tendler served a subpoena on
Google seeking the identities of the four bloggers, whose
identities Tendler had previously failed to obtain in an
attempt to unmask them as part of a defamation lawsuit. The
trial court applied the 2TheMart test for unmasking anonymous third-party witnesses and found that the request failed
that test, because the bloggers’ evidence would only go to
the heart of his liability claim, which had already been
resolved, and was not central to his claim for damages.

Varrenti v. Gannett Co., 929 N.Y.S.2d 671 (N.Y. Sup. Ct.
Monroe Cnty. 2011). The trial court rejected public official
defamation plaintiffs’ application for an order requiring
defendant Gannett, publisher of the Democrat & Chronicle,
to provide identifying information about four anonymous
posters to the newspaper’s website. Noting that “the culture
of Internet communications . . . has been characterized as
encouraging a ‘freewheeling, anything-goes writing style”
(citing Sandals, supra, the court held that the comments
were constitutionally protected statements of opinion, and
that the court therefore did not need to determine whether
the standards announced in Dendrite or Sony applied, or
whether the application should be converted to a proceeding
for pre-action disclosure pursuant to CPLR § 3102(c).

Hall v. Lipstickalley.com, No. 101342/2011 (N.Y. Sup. Ct.
N.Y. Cnty. May 5, 2011). The trial court rejected a CPLR
3102(c) petition to compel a Michigan-based website to
identify the author of anonymous postings, holding that New
York courts could not exercise personal jurisdiction. Jermaine
Hall, the editor of Vibe Magazine, and his wife filed the
petition on the basis that the poster, “BETonBLACK,” falsely
accused Hall of steering business to his wife’s marketing
firm. The court determined that Lipstickalley, a bulletin
board-style site aimed at African-American women, did not
have sufficient contacts with New York to confer personal
jurisdiction where it “is merely a passive website which
allows users to comment on and discuss various issues with
other users,” and where there was no evidence the site ever
solicited business in New York or systematically provided
services to New York residents.
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
Straus Newspapers Inc. v. People (N.Y. Sup. Ct. Orange
Cnty. Feb. 9, 2010) (transcript of oral argument). Through a
grand jury subpoena, the state sought to discover the identity
of posters who made critical remarks in a newspaper’s
online comment section. Although skeptical of the applicability of Section 230 of the Communications Decency Act
(and differential treatment of posts to a newspaper website
and letters to the editor published in the print edition), the
judge ruled that the comments on the blog were not
harassing or threatening and therefore not evidence of any
crime having been committed. On this basis, the court
granted the newspaper’s motion to quash.

Intellect Art Multimedia, Inc. v. Milewski, No. 117024/08,
2009 WL 2915273 (N.Y. Sup. Ct. N.Y. Cnty. Sept. 11,
2009). Plaintiff moved to compel the operator of the Ripoff
Report website to provide identifying information about
posters who allegedly defamed plaintiff. The court denied
the motion on two grounds. First, it held that the discovery
request was overbroad because it sought information about
posters whose comments were not at issue in the litigation.
Second, the court held that plaintiff was not entitled to the
identifying information of the poster whose comments gave
rise to plaintiff’s defamation claim because those comments
were opinions and thus not actionable.

Cohen v. Google, Inc., 887 N.Y.S.2d 424 (N.Y. Sup. Ct.
N.Y. Cnty. 2009). Model Liskula Cohen sought an order to
compel pre-action disclosure directing Google to reveal the
identifying information of a blogger who posted allegedly
defamatory comments about Cohen. The blogger appeared
anonymously through counsel to oppose the disclosure. The
court held that Cohen was entitled to pre-action discovery of
the blogger’s identity because she has “sufficiently
established the merits of her proposed cause of action for
defamation against [the blogger]” and “the information
sought is material and necessary to identify the potential
defendant.” Noting that New Jersey had adopted the
Dendrite standard, the court held that the law generally
applicable to a CPLR 3102(c) application for pre-action
disclosure (which requires “a prima facie showing of a
meritorious cause of action,” which the court went on to
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describe in a manner suggesting that factual allegations
supporting all elements of the claim suffice), together with
the legal requirements for establishing a meritorious cause
of action for defamation, were sufficient to address the
constitutional concerns raised by anonymous posters.

Von Kuersteiner v. Schrader, No. 100089/2008 (N.Y. Sup.
Ct. N.Y. Cnty. Oct. 17, 2008). Plaintiff sought to obtain the
identities of people who posted anonymous comments on a
blog that allegedly defamed plaintiff and his businesses. The
court applied the Sony factors as articulated in Public
Relations Society of America, Inc. v. Road Runner High
Speed Online, 799 N.Y.S.2d 847 (N.Y. Sup. Ct. N.Y. Cnty.
2005), and denied the request on the ground that the
challenged statements were opinions and that the complaint
therefore failed to state a viable defamation claim.

Ottinger v. Journal News, 36 Media L. Rep. (BNA) 2018
(N.Y. Sup. Ct. Westchester Cnty. July 8, 2008). After
anonymous posters on a newspaper website accused a
couple of fraudulently and illegally obtaining authorization
to build a large home on a “substandard” lot, the couple
commenced a defamation action against the posters and
sought information regarding their identity from the
newspaper. The newspaper filed a motion to quash the
subpoena. Applying the Dendrite standard, the court found
that the couple had attempted to notify the posters of the
proceedings, had identified the allegedly defamatory
statements, and had produced evidence on all elements of
their claim, save actual malice, which was not within their
control. The court further found “that the balance in this case
weighs in favor of” disclosure and denied the newspaper’s
motion to quash.

Greenbaum v. Google, Inc., 845 N.Y.S.2d 695 (N.Y. Sup.
Ct. N.Y. Cnty. 2007). An anonymous blogger intervened in
this suit for pre-action discovery, in which an elected school
board member was seeking identifying information of the
blogger and other anonymous posters from Google, the blog’s
host. Although the court described Dendrite as “persuasive
authority,” it declined to “reach the issue of the quantum of
proof that should be required on the merits” because “the
statements on which petitioner seeks to base her defamation
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claim are plainly inactionable as a matter of law” because
they were not reasonably susceptible of a defamatory
meaning and were constitutionally protected opinion.

Public Relations Soc’y of Am. v. Road Runner High Speed
Online, 799 N.Y.S.2d 847 (N.Y. Sup. Ct. N.Y. Cnty. 2005).
An anonymous speaker, who had written an email
containing allegedly defamatory statements about plaintiff,
moved to intervene in an action for pre-suit discovery filed
against the speaker’s ISP. The court denied the motion,
holding that the email was libelous per se and that the Sony
factors weighed in favor of disclosure.
North Carolina Federal Cases

Taylor v. Does 1-10, 4:13-CV-218-F, 2014 WL 1870733
(E.D.N.C. May 8, 2014). The court denied plaintiff’s several
motions for leave to take early discovery to obtain
identifying information about anonymous commenters who
plaintiff had alleged were business rivals falsely disparaging
his company and against whom he had brought Lanham Act,
defamation, and various other state law claims. Citing
Central Hudson Gas & Electric Corp. v. Public Services
Commission of New York, 447 U.S. 557, 561 (1980), the
court concluded, for purposes of the motions, that the
challenged speech was “commercial speech” because it
“‘related solely to the economic interests of the speaker and
its audience.’” The court then held that, in light of the
limited protection afforded commercial speech, the plaintiff
need meet only the lower “motion to dismiss” standard to
prevail on his motion—i.e., he “must demonstrate that at
least one of the claims in his complaint would survive a
hypothetical Rule 12(b)(6) motion to dismiss.” The court
explained that “[t]his requires citation to case law articulating the elements of the claim as well as application of the
principles described above to the factual allegations in the
complaint. Simply listing quotations from the website and
explaining how those quotations are deceptive, with no citation to authority of any kind, is not sufficient.” This, the
court held, the plaintiff did not do. In addition, the plaintiff
neglected to document for the court his attempts to notify
anonymous commenters of the possibility for an order for
disclosure. The plaintiff’s statement that he “‘made every
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effort to discover the identity of the person or persons who
have committed these acts,’” without describing “his efforts to
notify or serve the Defendants in any detail” or post notification on the appropriate message boards, was insufficient.

Elektra Entertainment Group, Inc. v. Doe, No. 5:08-CV115-FL, 2008 WL 5111885 (E.D.N.C. Sep. 26, 2008)
(Gates, Mag. J.), adopted by Elektra Entertainment Group,
Inc. v. Doe, No. 5:08-CV-115-FL, 2008 WL 5111886
(E.D.N.C. Dec. 4, 2008). In a copyright infringement suit by
plaintiff recording company against anonymous John Doe
defendant, plaintiff subpoenaed North Carolina State
University to discover Doe’s identity. The magistrate judge,
applying the Sony factors, denied Doe’s motion to quash the
subpoena. In a footnote, the court explained that it declined
to apply the Dendrite standard because the case involved
online music distribution, not expressive speech, and because
matters of copyright infringement are “a unique area of
particular federal concern.”

Alvis Coatings, Inc. v. Does 1-10, No. 3L94 CV 374-H,
2004 WL 2904405 (W.D.N.C. Dec. 2, 2004). Plaintiff sued
anonymous website posters for defamation, trademark
infringement, and various other torts, and subpoenaed their
ISPs for their identities. The court denied a defendant’s
motion to quash on the ground that plaintiff made a “prima
facie showing” on its claims because it “credibly averred”
facts in support of them.
North Carolina State Cases

People v. Mead, No. 10 CRS 2160 (N.C. Super. Ct. Gaston
Cnty. Aug. 16, 2010). A North Carolina state court granted a
newspaper’s motion to quash a subpoena issued by a
criminal defendant and seeking the identifying information
of a poster to the newspaper’s website. The court found that
disclosure of the poster’s identity was barred by the North
Carolina shield law, N.C. Gen. Stat. § 8-53.11 because (1)
the subpoena recipient is a journalist, (2) the information
sought by the subpoena is “confidential information related
to [the newspaper’s] newsgathering and news publishing
activities,” (3) the information was obtained while the
subpoena recipient was acting as a journalist, and (4) the
defendant failed to demonstrate clearly and specifically that
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the information (a) is relevant and material to the proper
administration of the proceeding, (b) cannot be obtained
from alternative sources, and (c) is essential to the
maintenance of his defense.

Hester v. Doe, No. 10-CVS-361 (N.C. Sup. Ct. Vance Cnty.
June 28, 2010). In this defamation action, the plaintiff, a
local elected official, subpoenaed the owner of a website on
which anonymous posters had made allegedly defamatory
comments. Without explanation, the court applied a hybrid
test that combined the 2TheMart factors with a motion to
dismiss analysis (which the court asserted to be grounded in
Dendrite’s prima facie case standard). The court specifically
rejected a summary judgment standard on the basis that this
“test [is] way too stringent and premature, especially where
there is no dispute that the blogs [sic] were posted and that
the blogs content [sic] are out there for all the world to
read.” Finding that six of the twenty statements at issue were
defamatory per se and that the 2TheMart factors were
satisfied, the court denied the website owner’s motion to
quash the subpoena as to those six statements.
Ohio Federal Cases

SPX Corp. v. Doe, 253 F. Supp. 2d 974 (N.D. Ohio 2003). A
publicly traded company brought a defamation action
against an anonymous poster to a Yahoo bulletin board and
sought to subpoena Yahoo for the poster’s identity. Yahoo
informed the poster of the subpoena, and the poster, through
counsel, filed both a motion to quash and a motion to
dismiss. After examining the statements at issue, the court
found that “a reasonable reader would view these statements
as the Defendant’s opinions, not facts” and granted the
motion to dismiss.

Wargo v. Lavandeira, No. 1:08-cv-02035-LW (N.D. Ohio
Oct. 3, 2008) (dkt. 15), subsequently arbitrated, JAMS Arb.
No. 1220041183 (Mar. 24, 2013) (Neal, Arb.), available at
http://www.scribd.com/doc/134974438/wargo.
Plaintiff,
who had posted anonymous comments on the Perez Hilton
celebrity gossip blog, filed suit after Mario Lavandeira, also
known as Perez Hilton, published her name and work email
address and encouraged others to contact her about her
comments. Plaintiff sought $25 million in damages, alleging
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that Lavandeira violated the blog’s privacy notice, causing
her to lose her job. The case was dismissed for lack of
personal jurisdiction and thereafter arbitrated in favor of
Lavandeira.
Oregon State Cases

People v. Delp, 178 P.3d 259 (Or. Ct. App. 2008). Defendant was convicted on charges of sexually abusing a minor.
An FBI agent, posing as a 14 year old girl, engaged in an
online chat on AOL with defendant, which led the FBI to
believe defendant was planning on traveling interstate to
have sex with a minor. The FBI issued an administrative
subpoena to AOL to discover defendant’s true identity. This
information eventually led to defendant’s arrest. On appeal,
the defendant argued that the subpoena was invalid because
it violated his “privacy interest” in his AOL subscriber
information, an interest guaranteed to him by the Oregon
Constitution. The court rejected this argument, holding that
defendant had no legally cognizable “interest in keeping
private the noncontent information that is held by a third
party regarding his Internet usage.” The court noted that it
was unaware of any principle that would prevent AOL from
responding to a proper government subpoena.

Doe v. TS, No. 08030693 (Or. Cir. Ct. Clackamas Cnty.
Sept. 30, 2008). The court applied the Oregon Media Shield
Law to deny plaintiff’s motion to compel production of
information identifying the author of an anonymous blog
comment.
Pennsylvania Federal Cases

Breslin v. Dickinson Township, No. 1:09-CV-1396, 2011
WL 1900462 (M.D. Pa. May 19, 2011). Defendants in a
First Amendment retaliation suit sought pseudonyms used
by the plaintiffs “when posting public comments regarding
the Defendants” online. Defendants hoped to demonstrate to
the court that the plaintiffs’ “First Amendment rights were in
no way chilled by the Defendants’ actions, because the
Plaintiffs continued a robust public commentary regarding
the Defendants in various online public forums.” Plaintiffs
provided this information, and the court thus denied as moot
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plaintiffs’ motion to quash a third-party subpoena and
defendants’ request to enforce it.

McVicker v. King, 266 F.R.D. 92 (W.D. Pa. 2010). A former
municipal employee sued his former employer for employment discrimination and moved to compel discovery from a
media entity’s website of the identities of a number of
anonymous posters. The court denied the motion. First, the
court concluded that the “trend among courts . . . is to hold
that entities such as newspapers, internet service providers,
and website hosts may, under the principle of jus tertii
standing, assert the right of their readers and subscribers.”
Second, the court rejected the employee’s argument that the
media entity’s website privacy policy vitiated the anonymous
posters’ expectation of privacy with regard to their
identifying information. Third, the court applied the
2TheMart/Enterline test to deny the motion, determining
that the posters’ identities were “not directly and materially
relevant to Plaintiff’s claim, but rather potentially may
relate to impeachment” and that “much of information
Plaintiff hopes to uncover . . . is information that has been,
or will be, obtained through normal, anticipated forms of
discovery.”

USA Technologies, Inc. v. Doe, No. 2:09-cv-03899-JD (E.D.
Pa. Sept. 10, 2009). See USA Technologies, Inc. v. Doe, 713
F. Supp. 2d 901 (N.D. Cal. 2010).

Enterline v. Pocono Medical Center, 751 F. Supp. 2d 782
(M.D. Pa. 2008). Plaintiff filed suit against her employer
alleging sexual harassment and retaliation. The local
newspaper, The Pocono Record, published an article about
the lawsuit, and in response several people anonymously
posted comments opining on the parties and the facts
underlying the case. On the newspaper’s motion to quash a
subpoena issued to it seeking the posters’ identifying
information, the court held, as a matter of first impression,
that the newspaper had standing to assert the First
Amendment rights of the posters. It further observed that
“[a]pplication of the standard set forth in Doe v.
2TheMart.com Inc.,” see Seminal Decisions, supra, “a case . .
. that Plaintiff quotes and cites in support of her arguments,
allows the Court to resolve the present issue on narrow
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grounds and does not require the Court to determine the full
extent of the First Amendment right to anonymity.” The court
quashed the subpoena, holding that the plaintiff had failed to
demonstrate the absence of alternative avenues for the
information sought.

Fonovisa, Inc. v. Does 1-9, No. 07-1515, 2008 WL 919701
(W.D. Pa. Apr. 3, 2008). Applying the “good cause”
standard, the court allowed plaintiffs to seek expedited
discovery to identify nine Doe defendant file sharers who
allegedly infringed the companies’ copyrighted material.
Pennsylvania State Cases

Kuwait & Gulf Link Transport Company v. Doe, 92 A.3d 41
(Pa. Super. Ct. 2014). Plaintiff government contractor filed
suit against one of its competitors and a John Doe defendant
claiming that Doe, an employee of the named defendant, had
sent false and defamatory letters to the U.S. Government
alleging that plaintiff was in violation of a federal statute by
maintaining business relationships with Iranian entities. The
trial court denied Doe’s motion to quash a subpoena seeking
his identity, holding that, because the speech was
“commercial speech as opposed to ‘literary, religious, or
political,’” Doe was not entitled to the First Amendment
protections for anonymous speech set forth in Pilchesky v.
Gatelli, 12 A.3d 430 (Pa. Super. Ct. 2011) (establishing fourpart, Dendrite/Cahill hybrid test for unmasking a defamation
defendant). The appellate court held that the denial order was
immediately appealable under the collateral order doctrine
and then reversed, holding that the letters constituted political
speech deserving of the highest constitutional protection. The
court further noted that, even if there was evidence that the
letters were written with an economic motivation, “that
knowledge alone is insufficient to compel the classification of
the [letters] as commercial speech.”

AmerisourceBergen Corp. v. Does, 81 A.3d 921 (Pa. Super.
Ct. 2013). Plaintiff company and its executive planned to
sue Doe defendants who had falsely identified themselves as
the executive in online postings that damaged the company’s
reputation. Plaintiffs subpoenaed the defendants’ ISP for
their identifying information, and the trial court ordered the
ISP to disclose the information to the court, in camera, prior
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to the complaint being filed. The trial court then issued upon
the defendants, under seal, rules to show cause why their
identities should not be disclosed to the plaintiffs. After the
show cause hearing, the court ordered disclosure of the
identifying information to the plaintiffs, but stayed its order
pending appeal. While that appeal was pending, one of the
Doe defendant’s identities was inadvertently disclosed to the
plaintiff’s counsel, and the trial court denied the defendant’s
motion to disqualify plaintiff’s counsel. The appellate court
subsequently held that it had no jurisdiction over the Does’
appeal of both issues because neither order was a final,
appealable order, and the collateral order doctrine did not
apply. In reaching the latter conclusion, the court held that
Pilchesky v. Gatelli, 12 A.3d 430 (Pa. Super. Ct. 2011), did
not apply because, unlike in Pilchesky, the online commenters in this case did not post anonymously or pseudonymously; rather, they “utilized the name of a real person in an
executive position with one of [the plaintiff company’s]
affiliates.” The court distinguished the case from others
involving misattributed comments on the ground that those
cases involved “obvious satire or indirect associations of
individuals.” Thus, “[b]ecause this speech does not constitute anonymous free speech, it does not warrant the protection of the First Amendment; therefore, Pilchesky[,]” which
utilizes a Dendrite/Cahill-type balancing test to account for
the First Amendment interests of the anonymous speaker, “is
inapplicable.” As such, there was no right “deeply rooted in
public policy” at stake sufficient to invoke the collateral
order exception to the requirement that there be a final,
appealable order for appellate jurisdiction to attach.

Melvin v. Doe, 836 A.2d 42 (Pa. 2003). A trial court judge
commenced a defamation action against anonymous
speakers who accused the judge of professional misconduct.
Plaintiff propounded discovery related to the names of the
speakers, and the anonymous speakers filed a motion for
protective order, which was denied by the court. The
appellate court quashed the appeal, holding that the order
was not a collateral order, but the Pennsylvania Supreme
Court vacated and remanded the action for consideration of
“whether the First Amendment requires a public official
defamation plaintiff to establish a prima facie case of actual
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economic harm” before unmasking an anonymous speaker.
The case settled.

Pilchesky v. Gatelli, 12 A.3d 430 (Pa. Super. Ct. 2011). In a
case involving defamation claims by a former public
official, an intermediate appellate court adopted a fourprong summary judgment/balancing test modeled after
Dendrite and Cahill for determining when anonymous
defamation defendants may be unmasked. The case began
when Joseph Pilchesky, who runs a local politics blog in
Scranton, Pa., sued then-Scranton City Council President
Judy Gatelli for defamation. Gatelli filed a counterclaim
alleging that Pilchesky and anonymous commenters on his
website had defamed her. The trial court granted Gatelli’s
motion to order Pilchesky to identify six of the commenters
who had posted invective-filled statements about the former
official, such as calling her “the world’s dumbest, biggest
asshole,” “the most dysfunction moran [sic] to ever be
[council] president” and “something inhuman.” The appellate
court vacated the trial court order and remanded the matter,
instructing the trial court to apply a four-prong test, that
requires: (1) notice to the anonymous defendant and “a
reasonable opportunity” to contest the subpoena; (2)
evidence (other than evidence of actual malice) sufficient to
survive a motion for summary judgment; (3) an affidavit
stating the plaintiff is seeking the information in good faith
and that the information is directly related to the claim,
fundamentally necessary to secure relief and unavailable
elsewhere, and (4) balancing of the commenters’ First
Amendment rights to speak against the plaintiff’s right to
recovery for a reputational injury.

Reunion Industries Inc. v. Doe 1, 80 Pa. D. & C.4th 449,
2007 WL 1453491 (Pa. Ct. Com. Pl. Allegheny Cnty. Mar.
5, 2007). After filing suit for commercial disparagement
against three anonymous posters to a Yahoo bulletin board,
plaintiff corporation sought an order compelling AOL to
identify one of the posters, and that poster moved for a
protective order. The court reviewed extant case law and
held that the summary judgment standard announced in
Cahill was the appropriate standard. The court granted the
poster’s motion without analysis and invited plaintiff to file
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a motion to rescind if it can make the requisite prima facie
showing.

Klehr Harrison Harvey Branzburg & Ellers, LLP v. JPA
Development, Inc., No. 0425 March Term 2004, 2006 WL
37020 (Pa. Ct. Com. Pl., Phila. Cnty. Jan. 4, 2006). Plaintiff
law firm filed a defamation and civil conspiracy action
against the owners/publishers of two websites containing
anonymous postings that were held to be defamatory per se.
The court rejected the Cahill and Dendrite standards,
concluding that ordinary discovery rules provide the
appropriate vehicles for analyzing an anonymous poster’s
First Amendment rights. Applying those rules, the appellate
court affirmed the denial of the motion for protective order.
(The court had earlier expressed its suspicion that the
anonymous poster was the defendant himself.)

Polito v. AOL Time Warner, Inc., 78 Pa. D. & C.4th 328,
2004 WL 3768897 (Pa. Ct. Com. Pl. Lackawanna Cnty.
Jan. 28, 2004). Plaintiff filed suit against anonymous speakers’ ISP and sought an order compelling the ISP to reveal
the identities of the anonymous speakers, whom plaintiff
alleged had harassed her with “pornographic, embarrassing,
insulting, annoying and . . . confidential” emails. The court
granted the relief after finding that plaintiff: “(1) satisfactorily
state[d] a cognizable claim under Pennsylvania law entitling
her to some form of civil or criminal redress for the actionable speech of the unknown declarant(s); (2) demonstrate[d]
that the identifying information is directly related to her
claim and fundamentally necessary to secure relief;
(3) [wa]s seeking the requested information in good faith
and not for some improper purpose such as harassing,
intimidating or silencing her critics; and (4) [wa]s unable to
discover the identity of the anonymous speaker(s) by alternative means.” Additionally, the court required the ISP to
notify the anonymous subscribers before disclosing their
identities, “to afford them a reasonable opportunity to
petition the court to vacate, reconsider or stay the discovery
order.”
South Carolina State Cases

State v. Brockmeyer, 751 S.E.2d 645 (S.C. 2013). The South
Carolina Supreme Court held that a convicted murderer was
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not entitled to a new trial on the grounds that the trial judge
had erroneously refused to enforce a subpoena issued by the
defendant seeking the identity of an anonymous commenter
to a television station’s website. The television station had
objected to the subpoena, which the defendant claimed could
identify a witness who might support his defense that the
shooting was accidental. Analyzing the competing constitutional issues at stake, the judge declined to enforce the
subpoena on the grounds that the information sought was
readily available through other means. The defendant failed
at trial to renew his motion to enforce the subpoena. On
subsequent appeal of his conviction, the defendant argued,
inter alia, that the trial court’s denial of his motion was
reversible error. The South Carolina Supreme Court
disagreed. Referencing both Doe v. 2TheMart.com and
Cahill, the court stated that the defendant had “present[ed] a
compelling argument for the disclosure of the commenter
under the circumstances presented.” Nevertheless, the court
declined to address the merits of the issue, instead deciding
the appeal on procedural grounds, holding that the issue had
not been preserved for appeal and that any error was harmless because the defense presented trial testimony similar to
that which the commenter could have provided. In a footnote, the court added that “the trial court correctly held” that
the state’s media shield law was inapplicable “because the
information was not source information but rather voluntary
expression by an anonymous person.”
Tennessee Federal Cases

Board of Education of Shelby County v. Memphis City
Board of Education, No. 11-2101, 2012 WL 5817945 (W.D.
Tenn. Nov. 15, 2012). The court denied on relevance
grounds a motion to compel a newspaper to produce identifying information about website commenters. In a lawsuit
challenging new state laws regarding school districts, the
Shelby County Commission subpoenaed information about
commenters to news articles about the controversy from the
publisher of the Memphis Commercial Appeal. The commission argued that the information would support its claim that
the laws were, in part, racially motivated. The court denied
the motion to compel, holding that such information was
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“not relevant to the underlying issue to be decided and [was]
not an appropriate subject of discovery in this case.”
Tennessee State Cases

Swartz v. Doe #1, No. 08C-431 (Tenn. Cir. Ct. Davidson
Cnty. Oct. 8, 2009 and Mar. 13, 2009). Donald and Terry
Swartz filed suit for defamation and invasion of privacy
against the anonymous owner of and posters to a blog that
allegedly accused the couple of “ruining” the Old Hickory
neighborhood in Nashville. After the Swartzes issued a
subpoena to Google seeking the identity of the anonymous
bloggers, one of them moved to quash. The court ruled that
it would follow the Dendrite standard for determining the
motion and granted a temporary protective order preventing
discovery of the identity of the bloggers. After additional
briefing and the presentation of affidavits, the court applied
the Dendrite test to its factual findings, determined that all
five prongs had been satisfied, and denied Doe #1’s motion
to quash and for protective order. Interestingly, in seeking
guidance on how to apply the final prong, the balancing test,
the court looked to Branzburg v. Hayes, 408 U.S. 665, 710
(1972) (Powell, J., concurring) as well as the Tennessee
Shield Law, T.C.A. § 24-1-208(c)(2). The court concluded
that the “relevant factors include: the specificity, relevance,
and materiality of the discovery request; the absence of
alternative means to obtain the requested information; and
the extent and reasonableness of the speaker’s privacy
expectations.” Finally, the court granted Doe #1’s motion
for interlocutory review, finding that the issues warranted
immediate appellate consideration.

State v. Cobbins, Nos. 86216 A, 86216 B & 86216 C, 2009
WL 2115350 (Tenn. Cir. Ct. Knox Cnty. Apr. 14, 2009).
After a criminal trial garnered significant local media attention, the defendants sought relief for coverage which they
claimed had “fueled hostile threats, accusation, and diatribes
by the public” against them and their attorneys. The defendants moved the court to (1) prohibit newspaper websites
from having comments sections following articles about the
trial, or (2) require that all commenters use their true names
and addresses, or (3) establish guidelines for acceptable
comments and employ monitors to ensure compliance. The
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court found that any order to disable the comment forums
would constitute an improper prior restraint. It further
rejected the defendants’ request to restrict commenters’
rights to anonymous speech, relying on 2TheMart to
conclude that “[s]o long as people are not committing any
wrongdoing, they should be free to anonymously participate
in the online forums.”
Texas Federal Cases

FUNimation Entertainment v. Does 1-1,337, No. 11-cv-147F (N.D. Tex. Feb. 10, 2011) (dkt. 7). Rejecting arguments
accepted by some judges in other jurisdictions, the court
held that the defendants were improperly joined under Rule
20 and severed all but one of them. The court held that
although all of the putative defendants allegedly used the
BitTorrent file-sharing system, “there are no allegations in
Plaintiff’s Complaint that the Defendants are in any way
related to each other, or that they acted in concert or as a
group in their allegedly offending actions.” Using the same
file-sharing system does not mean that the defendants were
acting in concert for joinder purposes, the court held. The
court had also ordered the plaintiff to show cause why
attorneys ad litem should not be appointed to represent the
interests of the defendants. After similar show cause orders
by the same judge against four other copyright plaintiffs
represented by the same counsel, the plaintiffs dismissed all
of their suits. See also Adult Source Media v. Does 1-247,
No. 10-cv-2605-F (N.D. Tex. Feb. 7, 2011); Harmony
Films, Ltd. v. Does 1-739, No. 10-cv-2412-F (N.D. Tex.
Feb. 7, 2011); Steve Hardeman, LLC v. Does 1-168, No. 11cv-56-F (N.D. Tex. Feb. 7, 2011); Serious Bidness, LLC v.
Does 1-109, No. 11-cv-2-F (N.D. Tex. Feb. 7, 2011).
Texas State Cases

In re John Doe aka “Trooper,” No. 13-0073 (Tex. Aug. 29,
2014). The plaintiffs, a CEO and his Ohio company, sought
authorization under a unique Texas procedural rule to
conduct a pre-action deposition of Google in order to obtain
the identity of a John Doe. The John Doe, known as
“Trooper,” had been sharply critical of the plaintiffs in blog
posts and the plaintiffs asserted they intended to sue Trooper
for libel and related claims. Trooper, who learned of the
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plaintiffs’ request when they posted notice of it to the blog,
filed a special appearance to oppose the pre-suit deposition
on the ground that he has no connection with Texas
sufficient to establish personal jurisdiction over him and the
Texas court is therefore not a “proper court” under the
procedural rule the plaintiffs invoked. After the trial court
rejected those arguments, Trooper sought mandamus relief.
The Supreme Court “conditionally grant[ed]” Doe’s petition
for a writ of mandamus, directing the trial court to vacate its
order and stating that the writ would issue if it did not. In so
holding, the court agreed with Trooper that the plaintiffs had
not established personal jurisdiction, which was their burden
even with the added obstacle of an anonymous defendant.
The court further reasoned that “forc[ing] [a potential
defendant] to choose between defending discovery in a
forum where a claim cannot be prosecuted and risking that it
will be used later in a forum where he is subject to suit” is
“unacceptable.” The court declined to address to what extent
the First Amendment might have permitted discovery were
the subpoena matter litigated in the context of a lawsuit,
rather than pre-suit discovery.

Lesher v. Doescher, No. 348-235791-09 (Tex. Dist. Ct.
Tarrant Cnty. June 8, 2012). Plaintiffs, a lawyer and his
wife, sued several anonymous and known individuals whom
they said falsely accused them in over 25,000 online
postings of sexual perversion, molestation, and drug dealing.
In 2009, upon application by the plaintiffs, the trial court
issued a letter rogatory to the superior court in Santa Clara,
California requesting issuance of a subpoena to the website
Topix.com. Plaintiff sought from Topix identifying
information about several individuals. Topix moved to quash
the subpoena, but the Santa Clara court reportedly denied the
motion, and certain information was produced by Topix. See
Lesher v. Does 1-178, No. 1-09-CV-134190 (Cal. Super. Ct.
Santa Clara Cnty. Feb. 5, 2009). The case eventually went to
trial in Texas, and in April 2012 the plaintiffs won a record
jury verdict of $13.7 million. Two months later, however, the
trial court granted the defendant’s judgment notwithstanding
the verdict, resulting in a “take-nothing judgment,” and the
Court of Appeals affirmed on statute of limitations grounds.
2013 WL 5593608 (Tex. App. Oct. 10, 2013), reh’g denied,
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2013 WL 6212223 (Tex. App. Nov. 27, 2013), and review
denied (Tex. Apr. 11, 2014).

In re Does, 337 S.W.3d 862 (Tex. 2011). In a per curiam
opinion, the Texas Supreme Court reversed a trial court’s
order granting a subpoena seeking to unmask two bloggers
critical of a political activist and blogger. PRK Enterprises
Inc., a company owned by blogger Philip R. Klein, filed a
petition for pre-suit discovery, seeking an order directing
Google to identify the authors of three blogs hosted by
Google’s Blogspot service, claiming the bloggers had “been
engaged in a pattern of libel and defamation per se, invasion
of privacy, and use of copyrighted images” against PRK and
Klein. Google agreed to comply with the subpoena, but gave
notice to the bloggers, who then unsuccessfully moved to
quash. The Supreme Court held that the trial court abused its
discretion in failing to comply with Rule 202 of the Texas
Rules of Civil Procedure, which mandates that specific
findings be made before pre-suit discovery is allowed. The
court rejected PRK’s argument that Google’s agreement to
comply obviated this obligation, stating that “PRK and
Google could not modify the procedures prescribed by
Rule 202 by an agreement that did not include [the bloggers].”

Texas v. Martinez, No. 17042-B (Tex. Dist. Ct. Taylor Cnty.
June 19, 2009). A criminal defendant sought from the
Abilene Reporter-News the names and other identifying
information of anonymous individuals who posted comments
on the newspaper’s website. The newspaper argued that, in
accordance with Supreme Court precedent interpreting the
First Amendment right to anonymity and the Texas appellate
opinion in In re Does 1-10, the Dendrite test applied, and
the defendant had failed to satisfy his burden under that test.
The newspaper also asserted that the request was unduly
burdensome, given that the newspaper was only provided
one day to respond. The court quashed the request without
explication.
Utah Federal Cases

Koch Industries, Inc. v. Does 1-25, No. 2:10CV1275DAK,
2011 WL 1775765 (D. Utah May 9, 2011). The district court
dismissed Koch Industries’ lawsuit against a group of
anonymous climate change activists who created a fake
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Koch Industries news release and website falsely announcing that the company had reversed itself and stopped
providing funding to climate change skeptics. The court
determined that the complaint failed to state any claim upon
which relief may be granted. For this reason, the court also
quashed a subpoena for the activists’ identities that was
issued to the web-hosting company used to set up the fake
website. In dicta, the court stated that “strict rules” protected
against the unmasking of anonymous online speakers and,
“[a]lthough courts have adopted slightly different versions
of the test, the case law has begun to coalesce around the
basic framework of the test articulated in Dendrite” (internal
quotation and punctuation omitted).

1524948 Alberta Ltd. v. Doe, No. 2:10 cv 0900, 2010 WL
3743907 (D. Utah Sept. 23, 2010). The court granted the
plaintiff’s ex parte motion for expedited discovery in an
action alleging defamation, trademark infringement, and
other tort claims against individuals posting to the website
www.bestpennyauctionwebsites.com. The court applied a
good cause standard, pursuant to Federal Rule of Civil
Procedure 26, to allow the issuance of subpoenas seeking
the identities of the posters. The plaintiff did not raise, and
the court did not consider, the First Amendment rights of the
defendants.

Warner Bros. Records, Inc. v. Does 1-4, No. 2:07-CV-424,
2007 WL 1960602 (D. Utah July 5, 2007). Applying the
“good cause” standard, the court allowed plaintiffs to seek
expedited discovery to identify four Doe defendant file
sharers who allegedly infringed the companies’ copyrighted
material.
Virginia Federal Cases

In re Application of the United States for an Order under 18
U.S.C. § 2703(d), 830 F. Supp. 2d 114 (E.D. Va. 2011).
Internet users do not have First Amendment associational or
Fourth Amendment privacy rights to shield their IP
addresses and details of their online activities from
government subpoenas, a trial court held in the case of
Twitter subscribers challenging subpoenas issued in a
federal investigation involving the disclosure of classified
information by Wikileaks. Federal prosecutors applied for
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subpoenas under the Stored Communications Act, 18 U.S.C.
§ 2703, to Twitter seeking the IP addresses of holders of
several Twitter accounts linked to WikiLeaks, including
those of American and Dutch computer security experts and
a member of Iceland’s parliament. The subpoenas also
sought the physical addresses, online screen names, credit
card numbers, and details of the subscribers’ online
activities such as the date, time and duration of each
connection to Twitter. Although government investigators
already knew their identities, those users raised several
Fourth and First Amendment arguments in an attempt to
quash the subpoenas, all of which were rejected by a federal
magistrate judge and U.S. District Judge. The account
holders had no standing under the SCA to challenge the
subpoenas, the court held. Even if they did, the court
continued, Internet users do not have a reasonable
expectation of privacy in their IP address information,
because that information is voluntarily provided to third
parties (here, Twitter and the users’ ISPs). Like the phone
number dialed to make a telephone call, the IP address is
routing information that does not reveal the contents of the
messages transmitted, the court said. The court rejected the
users’ argument that revealing the IP address information
would allow the government to pinpoint their locations in
private areas such as homes, holding that doing so requires
more information than the IP address alone. Further, the
court noted, Twitter’s terms of service, to which its users
must agree to open an account, allow Twitter to retain IP
address information and provide it to others, including the
government, at its discretion. The subpoenas did not infringe
on the Twitter users’ First Amendment associational rights
because they publicized their connections to Wikileaks and
because the subpoenas did not seek the contents of their
tweets, the court held.

Interscope Records v. Does 1-7, 494 F. Supp. 2d 388 (E.D.
Va. 2007). In this action against seven Doe defendant file
sharers for copyright infringement, the court denied
plaintiffs’ ex parte motion to serve a subpoena on an ISP,
finding that the subpoena was not authorized by the Cable
Act, the DMCA, or “any other authority” known to the
court.
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Virginia State Cases

Yelp, Inc. v. Hadeed Carpet Cleaning, Inc., 752 S.E.2d 554
(Va. Ct. App. 2014). The Virginia Court of Appeals
affirmed a trial court’s order that Yelp comply with a
subpoena seeking identifying information regarding seven
people who posted negative reviews of a Washington-area
rug cleaning service. The three-judge panel upheld the
constitutionality of Va. Code § 8.01–407.1, which allows for
such subpoenas where the plaintiff shows it has a
“legitimate, good faith basis” to contend it has been the
victim of actionable conduct, and explained that the law
requires the trial judge to balance the anonymous speaker’s
First Amendment rights with the subpoenaing party’s right
to protect its reputation. The court assumed that the reviews
were commercial speech deserving of lesser First
Amendment protection, but that conclusion was unmoored
to any other finding in the decision. Hadeed submitted
evidence that it had conducted its own internal investigation
of its customer database and had concluded that the
subpoenaed reviewers were not, in fact, customers of
Hadeed, as represented in their reviews. The court held this
was “sufficient evidence” to demonstrate a “legitimate, good
faith basis” to believe the posts were actionable defamation.
At the time of publication, Yelp’s appeal to the Virginia
Supreme Court was pending. Yelp, Inc. v. Hadeed Carpet
Cleaning, No. 140242 (Va. May 29, 2014).

Geloo v. Doe, No. CL-2013-9646, 2014 WL 2949508 (Va.
Cir. Ct. Fairfax Cnty. June 23, 2014). The court quashed an
attorney’s subpoena seeking identifying information for four
commenters who had mocked her on a website devoted to
local news. Applying Virginia’s unmasking statute, Va.
Code § 8.01-407.1, the court determined that the statements
at issue were either protected opinion or rhetorical hyperbole,
and thus not actionable as a matter of law. The plaintiff
could not, therefore, establish either of the statute’s alternative requirements that the statements “are or may be tortious
or illegal,” or that plaintiff had a “legitimate, good faith
basis” to believe that they may be tortious. The court held
that the latter showing requires more than a signed
complaint, which is otherwise presumed under Virginia law
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to have a good-faith basis in fact and law. Because the
plaintiff submitted “[in]sufficient evidence to show that the
statements were” actionable defamation, the subpoena did
not comply with the unmasking statute, the court held.

AOL, Inc. v. Nam Tai Electronics, Inc., 571 S.E.2d 128 (Va.
2002). A company filed suit in California against unknown
individuals for posting allegedly false and defamatory
messages about the company’s stock to an Internet message
board. The company then obtained an out-of-state discovery
order from a California court to depose AOL’s custodian of
records in order to determine the identity of one poster.
Although the Virginia Supreme Court denied AOL’s motion
to quash the subpoena on comity grounds, it allowed AOL to
assert the First Amendment rights of the subscriber, even
though the subscriber did not join the motion to quash after
he was notified of the proceedings.

Rajagopal v. Does, No. CL 10-3014 (Va. Cir. Ct. Henrico
Cnty. Mar. 7, 2011). Memorandum in Support of Motion to
Quash Subpoena and for Sanctions, available at
http://acluva.org/7369/rajagopal-v-does/. A California doctor
seeking to use Virginia courts to unmask anonymous online
critics withdrew her subpoena after pro bono counsel for
one of the commenters filed a motion to quash and sought
sanctions against the plaintiff and her Virginia attorney.
Lawyers from Public Citizen and the ACLU of Virginia,
representing one of the five pseudonymous defendants,
moved to quash the subpoena. They argued that the plaintiff
did not comply with a Virginia statute requiring subpoenas
seeking information about anonymous online speakers to
show that the targeted speech was tortious or illegal or that
the plaintiff has a good-faith basis for asserting she was the
victim of actionable conduct in the jurisdiction where the
case was filed. The pro bono attorneys also asked the court
to sanction Dr. Rajagopal and her Virginia attorney for
“bringing a meritless suit with absolutely no ties to the
forum state” in an attempt to avoid California’s anti-SLAPP
statute.

In re Subpoena Duces Tecum to America Online, Inc., 52
Va. Cir. 26, 2000 WL 1210372 (Va. Cir. Ct. 2000), rev’d on
other grounds by America Online, Inc. v. Anonymous
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Publicly Traded Company, 542 S.E.2d 377 (Va. 2001). In
this defamation and breach of confidentiality action, the trial
court held that “a court should only order a non-party,
Internet service provider to provide information concerning
the identity of a subscriber (1) when the court is satisfied by
the pleadings or evidence supplied to that court (2) that the
party requesting the subpoena has a legitimate, good faith
basis to contend that it may be the victim of conduct
actionable in the jurisdiction where suit was filed and (3) the
subpoenaed identity information is centrally needed to
advance that claim.” The Virginia Supreme Court reversed
and remanded on the basis that the lower court abused its
discretion in permitting the plaintiff—who was seeking to
unmask anonymous speakers—to proceed anonymously.
Washington Federal Cases

Mount Hope Church v. Bash Back!, No. C11-536RAJ (W.D.
Wash. Apr. 21, 2011). A church filed suit against a group of
individuals who had disrupted church services with a protest
of the church’s anti-gay teachings. The church subpoenaed
an online service provider seeking identifying information
for seven email account holders who were believed to have
either participated in or witnessed the protest. Applying the
Dendrite-style test adopted in SaleHoo Group, Ltd. v. ABC
Co., 722 F. Supp. 2d 1210 (W.D. Wash. 2010), which the
court noted “incorporates the 2themart.com’s last three
factors,” the district court quashed the subpoena on the
ground that the church had conceded that its argument that
the account holders “may” have discoverable evidence was
based on speculation, and that the account holders’ First
Amendment rights therefore outweighed the church’s right
to discovery. The court also granted sanctions against the
church under Rule 45, an aspect of the court’s decision that
was subsequently reversed by the Ninth Circuit.

SaleHoo Group, Ltd. v. ABC Co., 722 F. Supp. 2d 1210
(W.D. Wash. 2010). A company called SaleHoo filed suit
for trademark infringement, false designation of origin,
unfair competition, and defamation against the anonymous
owners of a website called “salehoosucks.com.” SaleHoo
sought pre-service discovery on the relevant ISP, which the
court authorized. SaleHoo issued a subpoena to the ISP, and
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the ISP notified the website owner, who moved to quash the
subpoena. Applying a “Dendrite-style test,” the court
determined that SaleHoo had not offered prima facie
evidence to support all of the elements of its claims and
granted the owner’s motion to quash the subpoena.

Doe v. 2TheMart.com, Inc., 140 F. Supp. 2d 1088 (W.D.
Wash. 2001). Discussed in Seminal Decisions, supra.
Wisconsin Federal Cases

In re Grand Jury Subpoena to Amazon.com Dated August 7,
2006, 246 F.R.D. 570 (W.D. Wis. 2007). During a grand
jury investigation of suspected tax evasion and wire/mail
fraud by a used-book seller who sold books through Amazon.com, the government subpoenaed Amazon to obtain the
identities of a random sampling of people who purchased
books from the seller. Amazon moved to quash the subpoena
on the ground that it would violate its customers’ First
Amendment right to privacy in book purchasing choices.
The magistrate judge ruled that where a grand jury subpoena
to a witness raises a legitimate First Amendment concern,
the government must make an additional showing of need
and the judge must fashion a solution that balances the need
of the government with the First Amendment rights of the
witness. The judge found that although the government had
made a showing of need, the legitimate First Amendment
concerns of the book buyers weighed against disclosing their
identities without their consent. The court held that there was
a real possibility that disclosure could chill book purchases,
noting “it is an unsettling and un-American scenario to
envision federal agents nosing through the reading lists of
law-abiding citizens while hunting for evidence against
somebody else.” The judge therefore ordered a compromise
whereby Amazon would contact its customers and ask for
volunteers who would be willing to come forward and contact
the government themselves. The government subsequently
withdrew the subpoena.
Wisconsin State Cases

Lassa v. Rongstad, 718 N.W.2d 673 (Wis. 2006). In this
defamation action filed by a political candidate against a
political organization and its president for statements made
179
3-191
in a mailer, the court held that a trial court must first decide a
motion to dismiss before compelling disclosure and imposing
sanctions on a party for non-disclosure. In adopting a motion
to dismiss test, the court expressly noted that this standard
provided more protection than it might in other jurisdictions
because Wisconsin state law requires all plaintiffs alleging a
defamation claim to plead with particularity. The court held
the test was met and ordered disclosure.
180
3-192
Mara Gassmann
Associate
mgassmann@lskslaw.com
1899 L Street, NW
Suite 200
Washington, DC 20036
(202) 508-1104
Mara represents media and entertainment clients in a variety of matters
implicating their First Amendment and intellectual property rights. She
joined LSKS after serving as a law clerk to the Honorable Leonie M.
Brinkema of the United States District Court for the Eastern District of
Virginia. Mara previously worked as an intern to the Honorable Emmet
G. Sullivan of the United States District Court for the District of
Columbia.
Before beginning her legal career, Mara was a spokesperson for CNN in
its Washington, DC bureau. During law school, she again worked with
CNN as a freelance legal writer during the confirmation hearings of
Justice Sonia Sotomayor and also interned for Reporters Without
Borders, where she produced a primer on U.S. asylum law for foreign
journalists.
Mara graduated magna cum laude from the Georgetown University Law
Center in 2011. She teaches communication law and other areas of law
as an adjunct professor at American University in Washington, DC and
Loyola University Maryland. She is a member of the National Press
Club.
3-193
3-194
Matthew E. Kelley
Associate
mekelley@lskslaw.com
1899 L Street, NW
Suite 200
Washington, DC 20036
(202) 508-1112
Matt’s practice focuses on representing media companies in a wide range
of litigation. He defends clients against defamation and privacy suits,
newsgathering claims, subpoenas for privileged information, and other
matters implicating First Amendment rights. Matt also counsels clients
on legal issues involving reporting and intellectual property.
Before beginning his legal career, Matt was an award-winning
investigative reporter for The Associated Press and USA Today. As a
journalist, he covered a variety of issues and institutions including
Congress, the Pentagon, and national politics.
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Ashley I. Kissinger
Partner
akissinger@lskslaw.com
1888 Sherman Street
Suite 370
Denver, CO 80203
(303) 376-2407
Ashley has been representing publishers and broadcasters in libel,
invasion of privacy, reporter’s privilege, government access, prior
restraint, and related First Amendment matters for over fifteen years. She
has also successfully defended website owners against subpoenas and
search warrants seeking to unmask anonymous online speakers and is
recognized as a leader in this emerging area of the law. She provides risk
management advice to website startups, conducts pre-publication review
for clients, and protects clients’ intellectual property rights. Ashley has
litigated cases in over 10 states and the District of Columbia.
According to The Legal 500, clients describe Ashley as “intellectually
keen” and “a pleasure to work with.” She has served in leadership
positions within the First Amendment bar, and she is regularly asked to
speak and write about media law issues.
Ashley has spent significant time championing the development of a free
and independent press in the Arabian Peninsula. She has assisted in
drafting proposed amendments to press laws in Kuwait, Yemen, and
elsewhere. She has also taught international free expression law to
journalists and editors in the region, advised reporters there on strategies
for developing a code of ethics, and presented on United States media
law at several conferences in the Middle East.
Ashley began her legal career as a law clerk for the Honorable Sam
Sparks of the United States District Court for the Western District of
Texas. Before joining LSKS in 1999, she practiced labor and
employment law with Brobeck, Phleger & Harrison LLP, in Austin,
Texas.
3-197
NOTES
3-198

Protections for Anonymous Online Speech

Transcription

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