05 March 2010

This concerns you

This concerns you
by RonB52
03/05/2010, 9:09 AM

A short time ago, a party to a civil case in federal court in Pittsburgh sought the identities of nine individuals who had been discussing local politics on an Internet discussion board. Those nine Internet users had been discussing the party himself and the people he had sued. He didn't want to sue the Internet users, but he did want to contact them and potentially use them as witnesses in the case. All nine had posted under pseudonyms and only the website operator knew their identities.

Aside from the principle involved -- that the First Amendment protects your right to speak anonymously if you choose to do so -- there were two very practical issues at stake. The website operator did not want to be seen as willing to disclose the identities of its users, because this would tend to stifle the discussion (and hence the traffic) on its website. And the individual posters -- particularly those who had been critical of the local government -- did not want their identities disclosed because the very focus of the civil lawsuit, and the focus of their critical comments, was that the local government officials had used illegal retaliation against people who disagreed with them. These writers had a legitimate concern that if their identities became known, they would be subjected to the same kinds of retaliation.

A subpoena was issued to the website owner, and the website owner lodged an objection and refused to comply. The party who issued the subpoena asked the trial court judge to enforce the subpoena, again over the objection of the website owner.

Two days ago, the federal trial judge issued an opinion refusing to enforce the subpoena. He ruled, first, that the website owner had legal standing to raise the anonymity objection on behalf of the anonymous posters. He then adopted a four-part test for determining whether anonymity will be breached to uncover potential witnesses. Briefly stated, the subpoena has to be issued in good faith, the witness's knowledge has to relate to a core claim and has to be directly and materially relevant to that claim, and the anonymous witness has to be the only source that would permit the party to prove his or her case. This is a very demanding standard, and it recognizes that it will be the "exceptional case" where a critical need for evidence will overcome the right to use the Internet anonymously.

This case is noteworthy because, to my knowledge, it is only the third time that this precise issue has been decided anywhere in the country, and the first time for the federal court sitting in Western Pennsylvania. All three of those cases imposed similar rules and, in two of them, reached the same result -- no disclosure of identities. (The third case was remanded and I don't know what the trial judge eventually did.)

The Pittsburgh federal court opinion was announced Wednesday morning. That same afternoon, an influential State-court trial judge, in a case where the identity of an alleged Internet defamer (thus, an alleged wrongdoer and not a mere witness) was being sought, surmised that the website operator in such cases has legal standing to object to the disclosure of identifying information, not merely on behalf of the anonymous user, but on its own behalf, because it has an interest in maintaining an active and vibrant forum. That judge required the alleged victim of the libel to show that he had viable evidence of every element of a libel case (except for elements that would require knowing the identity of the writer, such as the writer's knowledge, recklessness or negligence of the truth) before he would order the disclosure of identifying information. While this ruling might be viewed as similar to the test the federal court fashioned for unmasking innocent witnesses, you should be aware that it is considerably easier to meet. In fact, First Amendment advocates are working to get courts to adopt a more demanding test. But for now, if you libel someone (or commit fraud, for example), it will be easier for your victim to enforce a subpoena to find out who you are than if you are sought only as a potential witness.

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