Tag Archives: Anonymity

Publishing child sex abuse victim’s name on the web was not a privacy violation

Doe v. Fankhauser, 2010 WL 4702295 (N.D. Ohio, November 30, 2010)

County clerk immune from law suit over posting court document on government website.

Plaintiff Jane Doe was the victim of physical and sexual abuse when she was a minor. In the criminal case against the perpetrator, Doe’s name was redacted, and she and her family were allegedly assured that her name would not be publicly disclosed. But someone in the county clerk’s website scanned some documents from the criminal case that had Doe’s name in them and posted those electronic documents on the county’s website, making them publicly available.

So Doe sued the county clerk for violation of Doe’s constitutional due process rights and for common law invasion of privacy. The clerk moved to dismiss. The court granted the motion.

The court found that the clerk was protected by judicial immunity. Judges and court personnel who perform judicial and quasi-judicial functions are absolutely immune from suits for damages arising out of the performance of official judicial acts. In this case, the court found that the clerk’s actions in permitting the documents to be scanned and posted required a type of judgment closely related to the judicial process and therefore deserving of immunity.

Interestingly, the court held that the clerk was entitled to immunity from suit regardless of how careless she may have been. There was no loss of immunity merely because a mistake was made and the original document, without redaction, was made available to the public. “Where there is immunity, it applies even in the face of allegations of bad faith, malice, or reckless indifference.”

Makes you feel confident that the government is watching out for your privacy, doesn’t it?

Another massive porn Bittorrent copyright lawsuit in the Northern District of Illinois

MCGIP, LLC v. Does 1-1,164, No. 10-7675 (N.D.Ill., filed December 2, 2010) [Download Complaint]

Filing of copyright infringement complaint will be precursor to more subpoenas seeking to identify unknown file-sharing defendants.

Another porn company has filed a copyright lawsuit against hundreds of anonymous John Doe defendants who allegedly used the Bittorrent protocol to trade plaintiffs’ copyrighted movies. So ISPs around the country should expect another wave of subpoenas sent to unmask these unknown file sharers. The works allegedly infringed in this case include provocative titles such as “Girlfriend Lost a Bet” and “Iraq Care Package.”

Interestingly, this complaint — unlike the complaints in similar Bittorrent porn copyright cases — contains a paragraph that tries to explain why over a thousand defendants should be joined in one lawsuit:

Joinder is appropriate because, on information and belief, each Defendant was contemporaneously engaged in a coordinated effort with the other Defendants to reproduce and distribute Plaintiff’s copyrighted works to each other and hundreds of third parties via the BitTorrent protocol.

This language appears to be an attempt to head-off arguments like those made by EFF and others in some of the other massive copyright infringement actions against scores of anonymous defendants.

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Court orders anonymous accused Bittorrent defendants to be identified

West Bay One v. Does 1 – 1,653, — F.Supp.2d. —, 2010 WL 3522265 (D.D.C. September 10, 2010)

Achte/Neunte Boll Kino Beteiligungs v. Does 1 – 4,577, — F.Supp.2d —, 2010 WL 3522256 (D.D.C. September 10, 2010)

In mass copyright infringement cases against alleged traders of copyrighted movies via Bittorrent, unknown defendants had no reasonable expectation of privacy in their subscriber information held by internet service provider.

Several unknown “Doe” defendants who were sued for copyright infringement for trading movies via Bittorrent moved to quash the subpoenas that the plaintiff copyright owners served on the defendants’ internet service providers.

The subpoenas sought subscriber information such as the defendants’ names, addresses and MAC addresses, so that they could be named as defendants in the copyright litigation.

Defendants moved to quash the subpoenas, arguing that their subscriber information was private information that should not be disclosed pursuant to a Rule 45 subpoena. The court denied the motions and ordered the subscriber information produced.

The court held that the defendants did not have a reasonable expectation of privacy in their subscriber information held by the internet service providers. It cited to a number of cases that supported this holding, each of which had found that a person loses his or her expectation of privacy in information when that information is disclosed to a third party. See Guest v. Leis (6th Cir.), U.S. v. Hambrick (4th Cir.), and U.S. v. Kennedy (D. Kan.).

In footnotes, the court also addressed the potential First Amendment rights that the defendants would have to engage in anonymous file sharing. It quickly dispensed with any notion that such activities were protected in this case, as the pleadings on file set forth a prima facie case of infringement. “[C]ourts have routinely held that a defendant’s First Amendment privacy interests are exceedingly small where the ‘speech’ is the alleged infringement of copyrights.”

Ninth Circuit orders anonymous internet speakers be identified

In re Anonymous Online Speakers, — F.3d —, 2010 WL 2721490 (9th Cir. July 12, 2010)

Quixtar (which used to be Amway) sued Signature Management TEAM (“TEAM”) for tortious interference and other claims, alleging that TEAM engaged in a smear campaign against Quixtar on the internet. In his deposition, TEAM’s online content manager refused to answer questions concerning the identity of the authors of certain statements made against Quixtar online. On Quixtar’s motion, the court ordered that the online content manager answer some of the questions concerning the anonymous speakers.

The anonymous speakers sought mandamus relief from the Ninth Circuit. On appeal, the court denied the request. It held that the district court’s decision was not “clearly erroneous as a matter of law.”

The district court had applied the stringent test set out in Doe v. Cahill, which requires, among other things, that the party seeking the identity of an anonymous internet speaker present enough facts to support a hypothetical motion for summary judgment.

The Ninth Circuit looked to the nature of the speech at issue — commercial speech — and held that the Cahill standard was too high. But the application of a too-high standard did not mean that the lower court should be reversed. The outcome would have been the same (i.e., the anonymous speakers would have been ordered unmasked) even if the district court had correctly applied a lower standard appropriate for commercial speech.

This is a significant case on the topic of anonymity because it is only the third federal circuit opinion to consider the question as to when unknown online speakers should be identified. The others are NLRB v. Midland Daily News (6th Cir. 1998) and Lefkoe v. Jos. A. Bank Clothiers, (4th Cir. 2009).

Illinois court sets standard for unmasking anonymous commenters

Maxon v. Ottawa Pub. Co., — N.E.2d —, 2010 WL 2245065 (Ill.App. 3 Dist. June 1, 2010)

The rules of civil procedure in Illinois permit an aggrieved party to file a petition with the court asking for an order requiring unknown potential defendants to be identified. This is called a Rule 224 petition.

A couple from Ottawa, Illinois got their feelings hurt over some anonymous comments left in response to content published by the local newspaper on its website. Wanting to sue for defamation, the couple filed a Rule 224 petition. The newspaper opposed the petition. (For something similar, see Enterline v. Pocono Medical Center.)

The trial court denied the petition, applying the standards articulated in Dendrite v. Doe and Doe v. Cahill, finding that the petitioners had not presented a strong enough case for defamation to justify the unmasking of the anonymous commenters. Those cases require, among other things, that a party seeking to identify an anonymous speaker make efforts to notify the anonymous party, and present enough evidence to establish a prima facie case of defamation (Dendrite) or survive a hypothetical motion for summary judgment (Cahill).

The aggrieved couple sought review with the Appellate Court of Illinois. Reviewing the decision to deny the Rule 224 petition de novo, the court reversed and remanded, ordering the identification of the anonymous speakers to be made.

In reaching its decision, the court rejected the newspaper’s (and amicis’) arguments that the trial court should apply the rigorous standards of Dendrite and Cahill. That’s not to say, however, that the court left anonymous speakers at great risk of having their First Amendment rights trampled upon.

The court held that the mechanics of Rule 224 adequately protect the potential First Amendment rights of anonymous internet speakers. Here’s why, according to the court:

  • The petition must be verified – the threat of the pain of perjury should keep out half-hearted claims.
  • The petition must state the reason discovery is necessary.
  • The discovery is limited only to learning the identity of the potential defendant.
  • Most importantly, before the discovery will be permitted, the court must hold a hearing and determine the petition sufficiently states a cause of action.

In this fourth step, the court is to apply the standard it would apply in a Section 2-615 motion. Such a motion is, essentially, the Illinois version of a motion to dismiss for failure to state a claim. That is no insignificant test, because unlike federal court and other state jurisdictions, Illinois requires fact pleading. That means the petition needs to include a significant amount of specific information to survive the motion to dismiss.

A troubling aspect of the ruling is the omission from the test of a requirement that the party seeking discovery attempt to notify the anonymous target of the inquisition. The appellate court held that a trial court may, in its discretion, impose such a requirement.

But it would be nice to know that the real party whose First Amendment interests are at stake (the anonymous speaker) is guaranteed a fair opportunity to argue from his or her perspective. After all, it’s that party with the real incentive to do so. Let’s hope the trial courts exercise that discretion wisely (and that they know in the first place that they have that discretion).

Photo courtesy Flickr user TheTruthAbout… under this Creative Commons license.

Court scales back Zynga’s attempts to learn about anonymous Mafia Wars infringers

Zynga Game Network Inc. v. Williams, 2010 WL 2077191 (N.D.Cal. May 20, 2010)

Zynga (you know, the creator of Farmville and Mafia Wars) has filed a federal lawsuit against the operators of websites that sell virtual currency and goods for use in Mafia Wars. These websites allegedly give rise to infringement of the Mafia Wars trademark and the sale of these virtual things is in violation of the game’s terms of service.

In federal court, you can’t start the discovery process until the parties have met to discuss certain issues (this is called a Rule 26(f) conference). But there’s an obvious chicken and egg problem in cases like this that have anonymous defendants — how do you confer with a defendant you don’t know? You’re kind of stuck if you can’t take discovery to learn who he is.

Fortunately the court can allow discovery to happen before the Rule 26(f) conference when there is good cause.

So Zynga has argued that there is good cause to allow it to serve subpoenas on Godaddy (the registrant for the MAFIAWARSDIRECT.COM, MWBLACKMARKET.COM, and MWFEXPRESS.COM domain names) and PayPal, who apparently facilitated the purchase of virtual goods.

The court agreed that Zynga should get to serve the subpoenas. But it found that the subpoenas as proposed were too broad. For example, Zynga sought all billing and account records, server logs, website content, contact information, transaction histories and correspondence for the persons or entities that purchased services from the offending sites. The court held that the limited discovery appropriate for Zynga at the early stage would only allow it to get identifying information for the site owners.

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Anonymous accused Bittorrent user moves to quash subpoena using real name

Worldwide Film Entertainment, LLC v. Does 1-749, 2010 WL 2011306 (D.D.C. May 20, 2009)

Some have already commented on their scruples arising from the large economies of scale approach to copyright litigation that’s being undertaken by lawyers with the U.S. Copyright Group to go after Bittorrent movie sharers. See, for example, what Mike Masnick and Eriq Gardner have had to say. And the ISPs aren’t all that happy about the work required to respond to a bunch of subpoenas.

So no one should be surprised if some interesting little internet law vignettes play out along the way. One of those vignettes is wrapping up in federal court in Washington D.C. It has to do with anonymity.

Worldwide Film Entertainment has sued over 700 anonymous Bittorrent users over the 2007 film The Gray Man. As with any case of this sort (like the numerous RIAA lawsuits), the plaintiff doesn’t know the identity of the various defendants when the lawsuit starts. All it has is an IP address for each alleged infringement, so it has to go to the ISP to link that IP address with an individual’s name and physical address. Then the plaintiff will know who to list as a defendant.

But most ISPs won’t turn over subscriber information without a subpoena. So Worldwide Film Entertainment had a subpoena issue to Comcast, the ISP for the IP address associated with one of the alleged infringements. Under the Cable Communications Policy Act of 1984 (at 47 USC 551), providers like Comcast have to notify their subscriber before turning over the subscriber’s information.

Comcast notified its subscriber in this case, one Mr. Simko, of Worldwide Film Entertainment’s efforts to learn Mr. Simko’s identity.

And here’s the part that makes this little vignette so charming: rather than challenge the plaintiff’s efforts to unmask his identity, Mr. Simko filed a motion to quash the subpoena USING HIS REAL NAME.

The court denied the motion to quash. The basis for denying the motion is kind of an aside (the motion to quash phase was not the right time to challenge venue or knowledge of the infringement).

What’s noteworthy about the case is Mr. Simko’s decision to voluntarily waive his anonymity. Not only did he challenge the subpoena using his own name, he filed as an exhibit the letter he got from Comcast notifying him of the subpoena. Right there, in all caps and as plain as day were Simko’s name and address for all to see.

Photo courtesy Flickr user pourmecoffee.

Troubling decision in matter involving anonymous bloggers

20/20 Financial Consulting, Inc. v. Does 1-5, 2010 WL 1904530 (D.Colo. May 11, 2010) [Opinion embedded below.]

A financial consulting company has filed a lawsuit in federal court in Colorado alleging that certain anonymous web users have posted defamatory statements about the plaintiff on blogs and in message forums. The plaintiff asked the court for an order permitting it to serve subpoenas (apparently to the host and/or the ISP) to uncover the identity of the anonymous bloggers.

With essentially no analysis of the rights of the “John Doe” defendants, the court ordered that the discovery be permitted. This ruling is troubling for a couple of reasons.

There’s an important potential First Amendment issue here over which the court appears to have run roughshod. Each one of us has the constitutional right to speak anonymously. And courts need to be careful not to breach that right when asked to order that anonymous speakers be identified. Responsible courts give this constitutional interest the appropriate treatment by requiring that a certain showing by the plaintiff be made before the unmasking is permitted. See this page for a whole host of court opinions addressing that balancing test.

If the court went through that analysis in this case, it sure does not show up in the opinion.

One big troubling aspect is that the court compared the present situation to one in an earlier copyright infringement case brought by the RIAA. That comparison is not quite valid. In copyright cases, unlike defamation cases, the nature of what the plaintiff pleads is necessarily different — you have to plead a valid copyright registration as half of your prima facie case of copyright infringement. That means you already have the Copyright Office’s stamp of approval, so to speak, that the rights you are asserting are valid. In defamation cases there’s nothing equivalent to a copyright registration certificate. The plaintiff just says the offending statements are defamatory, and that has to be proven later. Simply stated, a claim for copyright infringement, properly pled, will be stronger, and will tend to suggest more clearly, that something actionable has occurred, than will mere assertions of defamation.

Apart from cursorily comparing this case to an unmasking in a copyright infringement case, the court does not mention the potential First Amendment concern of the anonymous defendants, nor does it mention the strength of the plaintiff’s allegations of defamation. The court simply says, “[b]ecause it appears likely that Plaintiff will continue to be thwarted in its attempts to identify Defendants without the benefit of formal discovery mechanisms, the court finds that Plaintiff should be permitted to conduct expedited discovery.” Such a reasoning would suggest anyone sued as a John Doe for defamation should be unmasked pretty much as a matter of course. That’s dangerous.

Anonymous photo courtesy Flickr user Neil Carey under this Creative Commons license.

cod-03902818228

Anonymous sender of beer pong email gets to remain unknown

A.Z. v. Doe, 2010 WL 816647 (N.J. Super. App. Div. March 8, 2010)

What's not to love about beer pong?

Even if you do just a cursory review of cases that deal with online anonymity, you are bound to come across a 2001 New Jersey case called Dendrite v. Doe. That case sets out a four part analysis a court should undertake when a defamation plaintiff seeks an order to unmask an Internet user who posted the offending content anonymously.

Under Dendrite, a court that is asked by a defamation plaintiff to unmask an anonymous speaker must:

  • require the plaintiff to try to notify the unknown Doe speaker that he or she is the subject the unmasking efforts, and give him or her a reasonable opportunity to oppose the application;
  • require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech;
  • require the plaintiff to produce sufficient evidence supporting each element of its cause of action, on a prima facie basis; and
  • balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure.

The state appellate court in New Jersey recently had occasion to revisit the Dendrite analysis in a case called A.Z. v. Doe. It found that a defamation plaintiff was not entitled to learn the identity of a person who anonymously sent an email that had content and attached photos that allegedly defamed plaintiff. The court found that plaintiff failed to meet the third factor in the Dendrite analysis, i.e., failed to present a prima facie case of defamation.

Beer pong is not for honor students

Someone took pictures of plaintiff playing beer pong at a party and posted them on Facebook. That’s all in good fun, except that plaintiff was a minor and belonged to her high school’s “Cool Kids & Heroes” program. Kids get into that program by making good grades and promising to refrain from bad behavior.

A purported “concerned parent” set up a Gmail account (anonymously) and sent an email to the faculty advisor for the Cool Kids & Heroes program. The email had photos attached showing several of the program’s kids doing things they shouldn’t be doing like drinking and smoking pot. In all fairness it should be noted that the picture of plaintiff only showed her playing beer pong — it didn’t actually show her drinking or smoking, though there were cups and beer cans on the table in front of her.

The faculty advisor forwarded the email and images on to school administrators, and the school also notified the police. But law enforcement apparently took no further action.

Plaintiff filed a defamation lawsuit against the anonymous sender of the email and sent a subpoena to Google to find out the IP address from which the message was sent. Google notified plaintiff that it came from an Optimum Online IP address. So plaintiff sent a subpoena to Optimum Online for the identifying information. The ISP notified its customer Doe, and Doe moved to quash the subpoena.

The trial court granted the motion to quash, concluding that plaintiff failed to meet the fourth Dendrite factor (dealing with the First Amendment). Plaintiff sought review with the appellate court, which affirmed but on different grounds.

Why the defamation claim failed

The appellate court agreed that the motion to quash should be granted (that is, that the anonymous sender of the email message should not be identified). But the appellate court’s reasoning differed. It didn’t even need to get to the fourth Dendrite factor, because it held that plaintiff didn’t meet the third factor (didn’t present a prima facie defamation case).

The big problem with plaintiff’s defamation claim came from the requirement that the statement alleged to be defamatory (in this case, that plaintiff had broken the law) needed to be “false.” The court found five reasons why this element had not been met:

  • Plaintiff submitted no evidence (like an affidavit) that she wasn’t drinking the night the photo was taken.
  • Plaintiff submitted no evidence that law enforcement actually concluded to take no further action. Plaintiff argued their lack of action showed she didn’t break the law.
  • Even if there was evidence that law enforcement decided to take no action, that would not have been relevant to the truth of the question of whether plaintiff was drinking. That would only go to show that law enforcement decided not to do anything.
  • The photograph attached to the email showing plaintiff playing beer pong would lead one to conclude that she was in “possession” of the alcohol on the table, and that was a violation of the law.
  • Doe submitted other photos from Facebook in connection with the motion to quash which showed plaintiff actually holding a beer.

So the court never got to the question of the First Amendment and how it related to the anonymous email sender’s right to speak. The court concluded that because plaintiff had not put forth a prima facie case of defamation, the anonymous speaker should stay unknown.

Beer pong photo courtesy Flickr user elisfanclub under this Creative Commons license.

Manganese dendrites in limestone photo courtesy Flickr user Arenamontanus under this Creative Commons license.

Court orders anonymous GQ blogger and accused hacker to be identified

Advance Magazine Publishers v. Does 1-5, No. 09-10257 (S.D.N.Y. Dec. 22, 2009)

Someone accessing the Internet using an AT&T IP address hacked into Conde Nast’s computer system and acquired and published copies of editorial content and the images that were to be in the December 2009 issue of GQ. Those images were later published anonymously on a blog hosted by Google’s Blogger service.

masked cutie

Conde Nast sued in federal court alleging copyright infringement (for the posting of the content) and violation of the Computer Fraud and Abuse Act (for the unauthorized accessing of the Conde Nast servers). Since the identity of the person or persons committing these acts was not known, Conde Nast sued “John Does 1 through 5″. It then filed a motion with the court for permission to serve subpoenas on AT&T and Google to get information with which to give the defendants a name.

The court granted the motion and authorized the subpoenas.

Rule 26(d)
requires that a party demonstrate good cause before expedited discovery will be permitted. In this case, Conde Nast gave four reasons supporting good cause:

  • It had sufficiently pled causes of action under the Copyright Act and the Computer Fraud and Abuse Act
  • AT&T’s server activity logs and Google’s registration data were at risk of being overwritten or purged
  • The scope of the information requested was appropriate — the only items being requested were those sufficient to name the defendants
  • Without the identifying information, the case would be at a standstill and Conde Nast might be left without a remedy

For these reasons the court ordered the anonymous participants to be unmasked.

Masked woman photo courtesy Flickr user Alaskan Dude under this Creative Commons license.