How To Discover The Identity of An Anonymous Internet
Author
Suppose you discover that someone has anonymously posted a
statement about you online that's not just harshly critical
opinion, it's blatantly false. You are considering filing a
defamation lawsuit against the author, but there's a problem-the
statement was made anonymously and you have no idea who could have
posted it. How can you discover the author's true identity? Is that
even possible?
As more and more websites allow users to post anonymous
comments/statements, this question will arise more frequently.
Thankfully, many courts have already tackled this issue and have
provided some relatively simple instructions on the process you
need to follow. Before you begin this process, it's necessary to
first understand the law regarding anonymous speech.
Anonymous Speech & The First Amendment
It is a common perception that when someone posts a comment
online without signing their name, they must be up to no good.
Maybe they are hiding something. Maybe they know their comments are
false and they are attempting to escape responsibility.
Whatever the author's reasons may be, it is very important to
begin by understanding that the First Amendment to the U.S.
Constitution protects the right to speak anonymously. This is true
whether the statements at issue were made on a website or in any
other format.
In a classic case that involved an Ohio law prohibiting the
distribution of unsigned leaflets, the United States Supreme Court
explained that anonymous speech is an honorable activity that is
entitled to strong (though not unlimited) protection under the
First Amendment:
In addition, it would violate the First Amendment Rights
of the authors of the postings to disclose their names without a
showing that their statements are false and defamatory. The
Supreme Court of the United States has unequivocally held that
the right to remain anonymous is protected by the First
Amendment. "Anonymous pamphlets, leaflets, brochures and
even books have played an important role in the progress of
mankind. Persecuted groups and sects from time to time throughout
history have been able to criticize oppressive practices and laws
either anonymously or not at all."
Under our Constitution, anonymous pamphleteering is not a
pernicious, fraudulent practice, but an honorable tradition of
advocacy and of dissent. Anonymity is a shield from the tyranny of
the majority. It thus exemplifies the purpose behind the Bill of
Rights, and of the First Amendment in particular: to protect
unpopular individuals from retaliation-and their ideas from
suppression-at the hand of an intolerant society.
…in general, our society accords greater weight to the value of
free speech than to the dangers of its misuse.
McIntyre v. Ohio Elections Com'n, 514 U.S. 334, 357,
115 S.Ct. 1511, 1524 (1995) (emphasis added) (citing Talley v.
California, 362 U.S. 60, 64, 80 S.Ct. 536, 538 (U.S.
1960)).
So the U.S. Supreme Court says that anonymous speech has an
"honorable tradition" in American history. It has also said that
the First Amendment does not protect defamatory speech. Why are
these points important?
These points are crucial because if you are attempting to
uncover the name of an anonymous author, you must understand that
courts are reluctant to "pierce the First Amendment's veil of
anonymity." There is good reason for this-once an anonymous
author's identity has been revealed, this cannot be reversed.
To balance these interests, Courts have concluded that a
plaintiff seeking to obtain the identity of an anonymous author
cannot overcome the author's First Amendment rights simply by
claiming they have been defamed. The law requires more-the
plaintiff must prove that he has a viable claim which is supported
by admissible evidence and that no other reasonable options exist
before the First Amendment's shield can be lifted.
So what exactly does the law require a plaintiff to do?
Piercing The Veil-A Three-Step Process
In Arizona, the process for obtaining an anonymous author's
identity is explained in Mobilisa v. Doe, 217 Ariz. 103,
170 P.3d 712 (App. 2007). The Mobilisa case involved a
plaintiff who sent a private email to his girlfriend using a secure
corporate email account. This email was intercepted by an unknown
party who then forwarded it from an anonymous email service to
several members of the plaintiff's management team, much to the
plaintiff's dismay.
The plaintiff subsequently filed a lawsuit against several "John
Doe" defendants, and it issued a subpoena to the anonymous email
service seeking to learn the true identity of the person who
intercepted the private email. The email service objected to the
subpoena on the basis that it sought information that was protected
under the First Amendment. The trial court ruled that the plaintiff
made a sufficient showing to overcome the First Amendment rights of
the author. The email service appealed.
The Court of Appeals reversed, finding that the trial court had
not done enough to protect the author's rights. In its discussion,
the court explained that a plaintiff who wants to obtain the name
of an anonymous author must comply with a mandatory three-step
process which can be summarized as follows:
Step 1 - Give Notice To The Author
Step 2 - Introduce Evidence Sufficient To
Overcome Summary Judgment
Step 3 - Balancing Test
The first step is simple, but often overlooked-it requires a
plaintiff to give notice to the anonymous author that his/her
identity is being sought. At first, this seems like a bizarre
requirement; if the plaintiff does not know who the author is, how
can notice be given?
The Mobilisa Court anticipated this issue and explained
the requirement as follows:
Consequently, the requesting party should make reasonable
efforts to inform the anonymous party of the pending discovery
request, including the pertinent case information, and inform that
party of the right to timely and anonymously file and serve a
response to the request. The requesting party's efforts must
include notifying the anonymous party via the same medium used by
that party to send or post the contested message. For example, if
the message at issue was sent via email, the requesting party must
make the notification via a response to the email or separate email
to the anonymous sender's address. Similarly, if the message at
issue was posted to an internet message board, the requesting party
must make the notification via a posting to that same message
board.
Mobilisa, 217 Ariz. at 110-11, 170 P.3d at 719-20.
So, a plaintiff who intends to use a subpoena to learn the
identity of an anonymous speaker must first provide notice to the
speaker in whatever medium the original message was posted. The
Mobilisa court did not provide a specific time-frame for
this notice, but a good rule of thumb is to post the notice at
least several weeks before any further efforts are made to enforce
the subpoena. This will ensure that the author has sufficient time
to find the notice and obtain counsel if necessary.
It should be noted that many plaintiffs skip this first step.
This is a mistake. The Mobilisa court clearly stated that
the notice is a mandatory requirement. As such, no matter how
legitimate the underlying claim may be, failure to provide notice
to the author will likely result in a delay or denial of any
subsequent efforts to enforce the subpoena.
The second step is by far the most important and most
time-intensive. This step requires the plaintiff to establish that
"it would survive a motion for summary judgment filed by [the
anonymous speaker] on all of the elements within the requesting
party's control-in other words, all elements not dependent upon
knowing the identity of the anonymous speaker." Mobilisa,
217 Ariz. at 111, 170 P.3d at 720. What exactly does this mean?
The "hypothetical summary judgment" test requires the plaintiff
to show that it has legitimate, legally viable claims, and that
that those claims are supported by admissible evidence which would
be sufficient to raise a triable issue of fact for trial. In
practice, this means that the plaintiff must show the court that it
has claims that are timely (i.e., not barred by the applicable
statute of limitations), and that the statements at issue are
actually capable of a defamatory meaning (assuming the underlying
claim is for defamation; this may not always be the case). The best
practice is therefore to prepare a brief for the court which
explains the client's claims, quotes the specific statement(s) at
issue, and explains why those statements are defamatory, if
necessary.
Next, the plaintiff must produce evidence that would establish a
triable issue of fact sufficient to overcome a hypothetical Motion
for Summary Judgment filed by the anonymous defendant. In most
cases, this requirement will be satisfied by an affidavit from the
plaintiff which identifies the statements at issue and avows that
those statements are false. Of course, care should be taken to
ensure that the affidavit is true. Any exaggeration or
overstatements made by a plaintiff in an affidavit may subject the
plaintiff to significant consequences including sanctions under
Rule 11, A.R.S. § 12-349, and possibly a counterclaim by the author
for abuse of process/wrongful use of civil proceedings.
The final step from Mobilisa requires the trial court
to perform a "balancing test" where the need for disclosure is
weighed against the author's right to remain anonymous. In most
cases, the dispositive issue is whether or not the plaintiff could
learn the author's identity through some other, less-intrusive
means. For instance, if an anonymous post contained information
that only a small group of people would know, the plaintiff may be
required to show that it has taken the deposition of each person in
the group and each person has denied any involvement in making the
statement. In that context, using a subpoena issued to an Internet
Service Provider or website host may be the only remaining means of
uncovering the author's identity.
Although the balancing test may seem unnecessary, care should be
taken to consider other options and explain why they would be
futile (or, better yet, that they have already been unsuccessfully
attempted). Providing the court with a thoughtful discussion of the
reasons why no other alternative is available will significantly
increase the likelihood that the court will conclude the
Mobilisa standards have been met.