US Internet Law/Online Anonymity
First Amendment Right
It is well-settled that the U.S. First Amendment shelters the right to speak anonymously.
- Buckley v. Am. Constitutional Law Foundation, 525 U.S. 182, 200 (1999) (invalidating, on First Amendment grounds, state statute requiring initiative petitioners to wear identification badges);
- Talley v. California, 362 U.S. 60, 65 (1960) (holding anonymity protected under the First Amendment because forced "“identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance”").
These cases celebrate the important role played by anonymous or pseudonymous writings through history, from the literary efforts of Shakespeare and Mark Twain through the explicitly political advocacy of the Federalist Papers.
As the Supreme Court has held, “Anonymity is a shield from the tyranny of the majority,” that “exemplifies the purpose” of the First Amendment: “to protect unpopular individuals from retaliation...at the hand of an intolerant society.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 357 (1995) (holding that an “author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of a publication, is an aspect of the freedom of speech protected by the First Amendment”).
Therefore, courts must “be vigilant... [and] guard against undue hindrances to political conversations and the exchange of ideas.” Buckley, 525 U.S. at 192. This vigilant review “must be undertaken and analyzed on a case-by-case basis,” where the court’s “guiding principle is a result based on a meaningful analysis and a proper balancing of the equities and rights at issue.” Dendrite International, Inc. v. Doe No. 3, 775 A.2d at 760-761. Moreover, that review must take place whether the speech in question takes the form of political pamphlets or Internet postings. Reno v. ACLU, 521 U.S. 844, 870 (1997) (there is “no basis for qualifying the level of First Amendment protection that should be applied to” the Internet).
“Against the backdrop of First Amendment protection for anonymous speech, courts have held that civil subpoenas seeking information regarding anonymous individuals raise First Amendment concerns”. Sony Music Entertainment v. Does, 326 F.Supp.2d 556, 565 (S.D.N.Y. 2004). See, e.g., Doe v. 2theMart.com, 140 F.Supp.2d 1088 (W.D. Wash. 2001) (granting, on First Amendment grounds, motion to quash subpoena to Internet service provider seeking identification of anonymous posters of messages critical of defendant); Dendrite International, Inc. v. Doe No. 3, 775 A.2d 756, 771 (N.J. Super. A.D. 2001); (strict procedural safeguards must be imposed “as a means of ensuring that plaintiffs do not use discovery procedures to ascertain the identities of unknown defendants in order to harass, intimidate or silence critics in the public forum opportunities presented by the Internet”); Columbia Ins. Co., v. Seescandy.com, 185 F.R.D. 573, 578 (N.D.Cal.1999) (plaintiff’s desire to seek redress for injury must be balanced against the legitimate and valuable right to participate in online forums anonymously or pseudonymously).
This has led to courts adopting multi-part tests.
Columbia Ins. Co. v. Seescandy.com
In Columbia Ins. Co. v. Seescandy.com, one of the first cases to address this issue, the court required the plaintiff to (1) identify the missing party with sufficient specificity that the court could determine whether the defendant could be sued in federal court; (2) make a good faith effort to communicate with the anonymous defendants and to provide them with notice that the suit had been filed against them – thus assuring them an opportunity to defend their anonymity; and (3) demonstrate that it had viable claims against such defendants. 185 F.R.D. at 579.
Doe v. 2theMart.com
In Doe v. 2theMart.com, the court found that the Constitution requires a judicial balancing of four factors before a subpoena can be used to identify anonymous Internet speakers: "[W]hether: (1) the subpoena . . . 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) [adequate] information . . . is unavailable from any other source."
Sony Entertainment Inc. v. Does
See also Sony Entertainment Inc. v. Does, 326 F. Supp. 2d 556, 564-65 (S.D.N.Y. 2004) (denying motion to quash subpoena to Internet service provider seeking identifying information for anonymous defendant; summarizing and applying and then applied the following criteria: “(1) a concrete showing of a prima facie claim of actionable harm... (2) 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”) (internal citations omitted)
Table of Contents · Preface · Introduction · Defamation · Defamation - General · Section 230 · Copyright · Copyright - General · Secondary Liability · Fair Use · DMCA · DMCA Safe Harbor · DMCA Anti-Circumvention · Trademark · Domain Names · Content Regulation · Online Anonymity · Communications Decency Act · Online Contracts · The Hold Harmless Clause in User Agreements · Clickwrap Agreements · UCITA · Privacy · ECPA · SCA ·