`Cybersmear' lawsuits raise privacy concern
BY HOWARD MINTZ
Mercury News Staff Writer
Companies big and small, from high tech to retail, have made John Doe one of the most sued men in America.
In yet another phenomenon of the Internet age, corporate executives have been loosing their lawyers on the nation's courthouses to hunt down the anonymous authors of disparaging -- or economically damaging -- content getting posted these days on the Web.
Over the past year, such ``cybersmear' lawsuits have been filed in Silicon Valley courts in unprecedented numbers by companies ranging from Sun Microsystems Inc. and E*Trade to Ross Stores. Since September, John Doe and other members of the Doe clan have been sued more than a dozen times in Santa Clara County Superior Court, usually for remarks posted on Internet message boards run by companies like Yahoo Inc.
``Unfortunately, the message boards have become a haven for the unscrupulous,' E*Trade lawyers said in court papers supporting a lawsuit filed last month in San Jose.
But these lawsuits are raising major concerns among Internet users and privacy advocates, who warn that well-heeled companies are abusing the court system to crush critics and even retaliate against their own employees. Groups such as the Washington, D.C.-based Electronic Privacy Information Center and the American Civil Liberties Union already are exploring whether the John Doe suits should be challenged on free speech and privacy grounds.
``It's a very new area of the law,' said Ann Beeson, staff attorney with the ACLU's New York-based national legal department. ``We're making the argument that there is a right to communicate anonymously. We aren't saying people have the right to defame, but . . . the presumption should be in favor of the First Amendment.'
While the suits are brought under a range of legal theories, they all have one thing in common -- they seek to unearth the source of information posted on the Internet about companies that ranges from personal diatribes against executives to inside accounts of business dealings, meetings and e-mails.
Many of them are like the most recent local case filed in Superior Court on Nov. 12. Harken Energy Corp., a gas and oil exploration company, sued numerous Does who posted online comments in July about a drilling venture in Colombia. The suit, which includes libel and trade secrets claims, is aimed at online identities such as ``walking_soft' and ``FearViciousRaptorRippingSlashing,' whoever and wherever they may be.
Nasty fights
Some of the John Doe legal fights have gotten downright nasty. A suit filed by Fruit of the Loom earlier this month in Illinois sparked a freewheeling debate over privacy rights on a Yahoo message group. Varian Medical Systems is locked in an acrimonious fight in San Jose federal court with two former research scientists, who after being identified through Doe lawsuits have struck back with an online assault on the company's tactics.
And companies aren't the only ones filing John Doe suits -- a judge in Pittsburgh filed a lawsuit recently to get the identity of individuals posting negative remarks about her in an Internet message group devoted to local politics. The ACLU is defending the Doe in that case.
Caught in the middle of this litigation fireball are service providers such as America Online Inc. and operators of the message boards, most notably Santa Clara-based Yahoo. Once the lawsuits are filed, companies can subpoena these firms to discover the identity of the John Does posting their comments -- stripping Web denizens of their anonymity.
Right now, there isn't much a John Doe can do to protect his rights (or Jane Doe, for that matter). Yahoo does not alert customers about subpoenas, so they can't even go to court to fight the disclosure. AOL and some other Internet service providers give a week or two of notice, but that is often not enough time to hire a lawyer and fight back.
``The deck is stacked entirely in favor of the companies filing these cases,' said David Sobel, general counsel for the Electronic Privacy Information Center. ``It seems to me a real abuse of the judicial system.'
Participants in the online chats also are miffed at Yahoo for failing to protect their privacy.
``Instead of helping me protect my rights, Yahoo is only interested in me if it helps them generate revenue,' said one target of a subpoena in the Fruit of the Loom case, who identifies himself only as ExpertOne_2000.
Jon Sobel, Yahoo's associate general counsel, said the company is trying to strike a balance between companies with legitimate concerns about damaging postings and the free speech rights of members. But the company policy is to release the information when it is subpoenaed.
Not liable
Companies such as Yahoo and AOL cannot be held liable for the content of online postings under the 1996 federal Electronic Communications Privacy Act.
``It is a very challenging problem for us and society to deal with,' Sobel said of how the company deals with the subpoenas. ``It's an example of how the medium is introducing all kinds of new issues for us and individuals to deal with -- we're trying like everybody else to figure out a way that's fair.'
Critics say companies are abusing this process to get the information without any intention of pursuing their claims. They say companies usually drop the lawsuit once they get the subpoenaed information from a firm like Yahoo, content to either put a stop to negative online postings or with finding out if one of their own workers is behind the missives.
``In every single one of these cases, the (company) files the suits to find out the identity of John Doe,' said Los Angeles attorney Megan Gray, who has become one of the few experts on the subject and recently succeeded in getting a Doe lawsuit dismissed on procedural grounds. ``They don't care about litigating against somebody with no money.'
Lawyers for the companies, however, say the Internet does not give anonymous Web users the unfettered right to defame firms, or to release proprietary information. And they deny that the lawsuits amount to a corporate witch hunt for dissenters and critics.
In a few instances, the Doe suits have led to money damages -- a Texas judge last year ordered a California man to pay an $8.3 million default judgment for posting anonymous barbs on a Yahoo message board about American Eco, a Texas-based conglomerate.
``Because of the anonymous nature of the Internet and the ability to post and send e-mail, companies can't know who the person is,' said Kathryn Fritz, a Palo Alto lawyer who has filed a number of the cases for local companies. ``I don't see any privacy concerns -- the cases involve real disputes that have equivalents out there in the world where a defendant is really named. It's a peculiarity of the Internet that we have to do things in this way.'
Reputations at stake
The lawsuits often center on information that companies think might damage their reputations or disclose trade secrets, all with implications for investors and stock prices. In one suit filed last month in Santa Clara County Superior Court, Alza Corp. alleged that one or more of its employees had used an Internet message board to improperly disclose in-house discussions about the company's pending acquisition by Abbott Labs.
Other suits allege that anonymous cybercitizens are posting erroneous information to manipulate a public company's stock price. Lawyers who represent the companies say such conduct can only be stopped through litigation.
``There is an extraordinary lack of accountability in cyberspace,' said Palo Alto attorney David Kramer, who was involved in one Doe suit last December on behalf of Network Associates.
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Contact Howard Mintz at hmintz@sjmercury.com or (408) 286-0236.
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