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Discovery of Anonymous Internet Users’ Identities

In the recent years, numerous Internet forums (aka “online message boards”) have provided a place for Internet users to discuss issues, entities/companies, and persons or individuals, who are often disguised in some form of anonymity. Sometimes, the targets of disparaging comments react by filing lawsuits in state or federal courts against unidentified (“John Doe”) defendants for claims such as violation of securities laws, breach of confidentiality agreement, and libel. Generally, in such disputes subpoenas are submitted to the message board hosts so to identify the authors. Notwithstanding the various challenges, the courts differ in their treatment of such subpoenas.

For example, see Jon Hart & Michael Rothberg, Anonymous Internet Postings Pit Free Speech Against Accountability, WSJ.com (March 6, 2002).

In Mobilisa, Inc. v. Doe, 170 P.3d 712 (Ariz. Ct. App. 2007) Mobilisa, a communications company, filed a complaint against numerous “John Doe” defendants who had submitted an anonymous e-mail to Mobilisa’s management team about the company’s founder and CFO’s conducts. Thereafter, Mobilisa attempted to compel The Suggestion Box, which was the service provider through which the e-mail was submitted, so to obtain the person’s identity who had submitted the e-mail. The trial court granted Mobilisa’s request and ordered The Suggestion Box to reveal the identities of the anonymous senders. Thereafter, The Suggestion Box and the senders of the e-mail appealed the trial court’s decision.

The Arizona Court of Appeals ruled that a court considering a request to require disclosure of the identity of an anonymous speaker must consider three factors: (1) whether the defendant was given adequate notice and opportunity to respond to the request, (2) whether the plaintiff’s cause of action can survive a motion for summary judgment on elements not dependent on the speaker’s identity, and (3) whether a balance of the competing interests weighs in favor of disclosure. Because the trial court considered only the first two factors, the appellate court remanded the case to the trial court to consider the third factor.

Also, in Columbia Insurance Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal.1999), plaintiff attempted to sue anonymous defendants for registering the plaintiff’s trademark as the defendants’ domain name. The court would not issue a temporary restraining order against the defendants until they were properly served with the complaint, which required the plaintiff to identify the anonymous defendants. Balancing the public interest in providing injured parties with a forum to seek redress for grievances against the legitimate and valuable right to participate in online forums anonymously, the court formulated a four-part test for deciding when to permit discovery to uncover the identity of an anonymous defendant before a complaint has been served.

The district court held that plaintiff must: (1) identify the anonymous defendant with sufficient specificity to allow the court to determine that the defendant is a real person or entity that could be sued in federal court; (2) identify all previous steps taken to locate the elusive defendant; (3) establish to the court’s satisfaction that the plaintiff’s suit against the defendant has sufficient merit to withstand a motion to dismiss; and (4) file a request for discovery with the court, along with a statement of reasons justifying the specific discovery requested, and must identify a limited number of persons or entities from which the plaintiff could take discovery that might lead to identifying information making service of process on the defendant possible.

As readers can see, a claimant who is seeking to discover the identity of an anonymous Internet user and seek damages, must prove several elements. Please contact us if you have any questions or concerns relating to this topic.