[IP] New ruling mostly avoids issue of First Amendment protection for Internet anonymity
------ Forwarded Message
From: Paul Levy <plevy@xxxxxxxxxxx>
Date: Fri, 18 Mar 2005 18:44:05 -0500
To: <dave@xxxxxxxxxx>
Subject: New ruling mostly avoids issue of First Amendment protection for
Internet anonymity
The Maine Supreme Judicial Court issued a decision today in the case of
Fitch v. Doe, ruling that a plaintiff who claimed that he had been
injured by an anonymous Internet user could enforce a subpoena to
identify the person who sent the email. The defendant had sent the
email in the plaintiff's own name, and the plaintiff claimed that this
constituted both identity theft and other torts under state law. The
court ducked the most important issue in the case, whether the First
Amendment sets standards governing the issuance or enforcement of such
subpoenas, but the opinion makes clear that such claims can be raised on
appeal in the future. The opinion is posted at
http://www.courts.state.me.us/opinions/2005%20documents/05me39fi.htm.
A PDF version of the opinion can also be downloaded there.
The Doe, who was represented by counsel, argued to the trial court, and
again on appeal, that the subpoena should not be enforced because his
internet access was by cable and the Cable Communications Policy Act, 47
U.S.C. sec. 551(c) forbids ANY subpoenas for confidential subscriber
information unless there is strong proof of criminal activity. The
Supreme Court made short work of that argument, holding that the Cable
Act does not pose any absolute bar to subpoenas seeking information for
civil cases. The court also rejected the plaintiff's argument that the
subscriber agreement between the Doe and his Internet Service Provider
showed the Doe's consent to disclosure, on the ground that there had
been no admissible evidence of such consent.
Public Citizen filed an amicus brief in the case, joined by the
American Civil Liberties Union, the Electronic Frontier Foundation, and
the Maine ACLU, urging the Court to consider the First Amendment
implications of the subpoena, and I argued the case on behalf of amici.
The court acknowledged that courts in several other states had adopted
First Amendment standards that balance the right to speak anonymously
against the right of a plaintiff with a valid claim that can be
supported by evidence of wrongdoing's had been met. However, the court
declined to decide whether Maine should follow those authorities, and
whether the case should be sent back for further consideration of that
issue, because the Doe failed to raise the issue in the trial court.
However, the ruling makes clear that such issues can be raised in the
future, and the court's references to the approach adopted in other
states appears to be a positive one. Also important is that the Maine
court joined the other states in ruling that, when a trial judge allows
such a subpoena to identify an anonymous Internet user, the user can
obtain immediate appellate review. Otherwise, the court recognized, the
right to anonymity will be forever lost. Thus, the court's opinion
sends a clear message that, in future cases of this sort, an anonymous
Internet use can raise the First Amendment right to remain anonymous and
can secure consideration of his First Amendment rights on appeal if
necessary.
Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation
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