Suit Raises Rights of Internet Users When ISPs Are Subpoenaed for Personal Information

(May 14, 2000) An anonymous chat room poster filed a John Doe lawsuit against Yahoo! for responding to a subpoena for information about him in another lawsuit. Yahoo! provided no notice of the subpoena to the John Doe before providing his personal information.

See, Complaint in AquaCool v. Yahoo!, 5/11/00.

The anonymous plaintiff, who is also listed in the complaint by his Yahoo! username, AquaCool, filed suit in U.S. District Court for the Central District of California (Los Angeles) on May 11. The complaint names one defendant, Yahoo!, an Internet portal, which provides, among other things, online chat rooms for discussion of public traded companies.

The plaintiff, AquaCool, frequently posted anonymous messages to the chat room for Answer Think, a publicly traded web services company listed on the NASDAQ [ticker: ANSR]. AquaCool was an Answer Think employee at the time. His posts were highly critical of the company and its management.

Answer Think filed suit against AquaCool and others in Florida for defamation. As a part of the Florida suit, Answer Think subpoenaed Yahoo! for its information about AquaCool.

Venue?
The sole plaintiff, Aquacool, is a resident of Ohio. The sole defendant, Yahoo!, is a Delaware corporation with headquarters in Santa Clara, California. The subpoena which gave rise to this suit was obtained by Answer Think, a Florida corporation with headquarters in Miami, Florida, in a suit brought in Florida.

Aquacool sued Yahoo! in U.S. District Court in Los Angeles, California.

Yahoo! complied. Answer Think fired AquaCool.

The suit contains four claims for relief:

AquaCool seeks compensatory damages for all personal and economic harms suffered as a result of Yahoo!'s actions (he lost his job), exemplary and punitive damages, and costs and attorneys fees.

Finally, he requests "A permanent injunction prohibiting the release of private information without specific and prior notice to Yahoo!’s members."

Answer Think is not a defendant in AquaCool's suit against Yahoo!.

AquaCool's complaint was drafted by Megan Gray of the Los Angeles offices of the law firm of Baker and Hostetler.

While AquaCool may or may not recover a financial award, the greater importance of this suit is the effect that it might have on the subpoena compliance practices of companies, the law of privacy, and future legislative activity.

The complaint alleges, on information and belief, that

"Yahoo! receives hundreds of civil subpoenas every year for information identifying members who have posted comments critical of publicly held companies on the Yahoo! message boards.

[and]

Yahoo! knows or has reason to know that many of the lawsuits seeking members' personal information are frivolous and would not withstand a motion to dismiss. Yahoo! is aware that executives at publicly owned companies that are featured on the message boards frequently take umbrage at the critical comments posted about "their" companies on the message boards. With sensitive egos and money to burn, such companies often file a lawsuit merely in order to obtain the right to subpoena Yahoo! for members' information so that the company's curiosity and desire to silence the member can be satiated. This phenomenon has been chronicled in numerous media. Nonetheless, the subject of the lawsuit is unable to mount such a defense prior to Yahoo!'s disclosure of personal information -- solely because the defendant is not notified by Yahoo! of the lawsuit or the subpoena."

Presently, the way subpoenas are handled varies from company to company. Yahoo! does not provide notice to its users before complying with subpoenas.

See, The Process that "John Doe" is Due: Addressing the Legal Challenge to Internet Anonymity, by David Sobel (link to the web site of the Virginia Journal of Law and Technology).

David Sobel, an attorney with the Electronic Privacy Information Center (EPIC), wrote recently in the Virginia Journal of Law and Technology, that "Some service providers, including America Online, notify subscribers when civil subpoenas are received and allow them a period of time to challenge the process. But many online services -- most notably Yahoo! -- comply with such subpoenas as a matter of course, without notice to their users."

Suits such as AquaCool's could lead companies like Yahoo! to change their policies.

Presently, there is no legislation pending in the Congress which would address this topic. However, David Sobel told Tech Law Journal that "I am hopeful that cases like this are ... going to raise the visibility of this problem."

This suit "grows out of inadequacies in the Electronic Communications Privacy Act," said Sobel. The ECPA addresses subpoenas by government entities only.

Also, while the law suit filed by AquaCool pleads invasion of privacy, Sobel stated that "it is really a due process question." That is, AquaCool should have been given notice, and the opportunity to be heard by a judicial officer, before Yahoo! responded to the subpoena. Sobel added that there needs to be "a mechanism to raise objections to the identification before he is identified."

Sobel addressed just what this due process might look like in his article in the Virginia Journal of Law and Technology. (See, excerpts, below.)

Tech Law Journal also contacted Answer Think, but was informed that the company "does not comment on pending litigation."

Excerpts from The Process that "John Doe" is Due: Addressing the Legal Challenge to Internet Anonymity, by David Sobel.
"Three proposed changes to current law would go a long way toward remedying that problem ...

First, the Electronic Communications Privacy Act ("ECPA") should be amended to require the presentation of a subpoena before information identifying an Internet user can be disclosed to any party. As noted, the statute currently requires a subpoena only when a "governmental entity" seeks such information. A generally applicable subpoena requirement would be the first step toward ensuring due process rights for anonymous speakers.

Second, ECPA should require that upon receipt of a civil subpoena for information concerning a subscriber or user, a service provider must notify the individual of the request. A reasonable amount of time should be allowed for the individual to take appropriate action (i.e., move to quash) before any identifying information is disclosed. ... A uniform, federal right to notice would ensure that legitimate claims for the preservation of anonymity can be addressed by the courts.

Finally, some measure of judicial oversight should be brought to the discovery process even when John Doe defendants are unable to retain counsel to defend their anonymity. Congress and state legislatures should consider revisions to civil discovery procedures that would require a judge or magistrate to review subpoenas or other process seeking the identity of anonymous speakers when the anonymous defendant has not entered an appearance after receiving notice of the process. Such requirements should apply to cases involving speech-based claims against "John Doe" defendants to ensure that the underlying claims are legally valid and that discovery requests are not abusive or overly broad. The courts might also establish procedures whereby an anonymous defendant could submit pro se written objections to a subpoena without disclosing his or her identity to opposing counsel. ..."