Arizona state court adopts three part test for unmasking anonymous online speakers

Test adds an additional “balancing of the competing interests” element to the Cahill test

Mobilisa, Inc. v. Doe, — P.3d —-, 2007 WL 4167007 (Ariz. App. November 27, 2007)

Plaintiff filed suit in Washington state court against an anonymous (“John Doe”) defendant which it accused of violating the Computer Fraud and Abuse Act and the Stored Communications Act. Doe allegedly accessed the plaintiff’s computer system and obtained a copy of an “intimate” email which he forwarded to a number of people.

Plaintiff served a subpoena on Doe’s Arizona-based email provider, seeking to uncover Doe’s true identity. The email provider and Doe individually, through counsel, objected, but the Arizona court ordered that Doe’s identity be revealed. The court looked to the 2005 case of Doe v. Cahill which requires (1) that the anonymous party sought to be unmask be given notice of the proceedings, and (2) that the party seeking the identity of the anonymous party put forth sufficient facts to survive a motion for summary judgment.

Doe appealed the lower court’s order which required he be identified. On appeal, the Arizona Court of Appeals remanded the matter back to the trial court. It held that although the court correctly applied the two Cahill factors, it should have considered a third factor, namely, a balancing of the relative interests of the parties. Consideration of this third factor, the court held, would help ensure that the important First Amendment rights at issue in anonymous speech cases would be adequately protected.