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To: Jeffrey S. Mitchell who wrote (1167)	2/28/2001 4:12:49 PM
From: Jeffrey S. Mitchell	Read Replies (1) \| Respond to of 12465

Re: 2/28/01 - [GTMI] Industry Standard: Online Speech Precedents Still Trickling In February 28, 2001 Online Speech Precedents Still Trickling In An L.A. judge says anonymous ranters can't be sued for libel, the ACLU steps up to protect John Doe, and China buys a filter. By Jen Muehlbauer Maybe someday we'll have all the laws we need to govern the Internet. This, however, is not the week, as the legal system slouches toward a precedent for anonymous online speech. An L.A. judge has dismissed a lawsuit attempting to collect damages from anonymous message-board posters. Essentially, the judge ruled that online banter about companies is too out-there to be considered libel – they're obviously opinions, not facts. "These postings ... lack the formality and polish typically found in documents in which a reader would expect to find facts," wrote Judge David Carter. "It is unlikely, for example, that a corporation would express the view that investors should 'up the volume for some of that 2 dollar love.'" Kudos to Wired for digging up that bit of judicial wisdom. With such good sound bites available, where's the rest of the tech media? The ACLU got into the act on Monday, vowing to protect online "John Does" from similar lawsuits. News.com reported that the ACLU submitted an appeal in a defamation case involving an online criticism of a Pennsylvania judge. The Washington State ACLU joined up with the Electronic Frontier Foundation to fight a subpoena that would reveal the identity of another anonymous poster. Newsbytes added that the ACLU wants most online speech regulated under slander laws (for spoken defamation) not libel ones (which cover published defamation). While you're waiting for some First-Amendment-loving reporter to connect the ACLU crusades with the stock-board libel victory, you can read about new Chinese filtering software. China already blocks politically controversial Web sites, reported Reuters, but this software extends the filtering to sex and violence. Reuters' information came from a Chinese police official, who spoke "without making clear whether installation was mandatory," said the wire. Censorship is a serious charge, so let's hope for Reuters' sake that this new threat to Chinese freedom doesn't turn out to be simply a new product on the market. thestandard.com

To: Jeffrey S. Mitchell who wrote (1167)	2/28/2001 4:20:05 PM
From: Jeffrey S. Mitchell	Read Replies (1) \| Respond to of 12465

Re: 2/21/01 - [RURL] Wired: Can John Doe Stay Anonymous? Can John Doe Stay Anonymous? by Jeffrey Terraciano 2:00 a.m. Feb. 21, 2001 PST What kind of lawsuit do you have when the plaintiff is happy to drop the charges and the defense attorneys wish they could have gone to trial? Rural/Metro, an ambulance and fire service company in Scottsdale, Arizona, sued four individuals who had posted messages on the company's Yahoo finance message board that contained what it alleged to be confidential and libelous material. In the suit, Rural/Metro subpoenaed Yahoo, demanding the identities of the four individuals involved in the postings. Rural/Metro dropped the suit Tuesday, saying it had accomplished its goal of having the messages stop. But the defense attorneys said they were disappointed the case didn't go to trial, because they hoped to set a legal precedent saying companies couldn't gain access to private information just because they allege they were wronged. Privacy and free speech advocates saw the Rural/Metro case as a missed opportunity. Had the case gone to trial, the court would have addressed whether, or under what circumstances, Internet Service Providers would be required to divulge private information. "(Companies or individuals) do not have to allege facts with much specificity in order to get a subpoena right now," said Nicole Berner of Jenner & Block, a law firm that worked with the Liberty Project to represent two of the defendants. Berner said this case could have changed that by setting a precedent by which ISPs could determine whether to disclose personal information. The defendants were four individuals, known as John/Jane Does 1-4, who went by the pseudonyms "iamcashman2525," "southernemptyall," "hotmedicaz" and "smilelikeyoulikeit." In a Complaint filed in the U.S. District Court in San Jose, California, Rural/Metro said that the individuals had posted and were continuing to post messages containing "false, misleading and/or deceptive information about Rural/Metro's business and its key employees." Trial was set for March 12. Rural/Metro, however, unexpectedly issued a press release saying that it would be dropping all charges, explaining that the messages had stopped, and there was no reason to pursue the case further. "I see it as a victory, but a different kind of victory," Berner said. "It's good for the 'Does,' but we wanted something on the books." According to Lauren Gelman, director of public policy with the Electronic Frontier Foundation (EFF), this case also offered the opportunity to set a precedent by which libel would have to be established before identities were disclosed. Berner said that Internet Service Providers (ISPs) are regularly bombarded with requests for their users' identities. "For Yahoo, or any other ISP, to step in and offer legal help for their members would cost them a huge amount in legal fees," Berner said. Yahoo's policy, when these situations arise, is to notify the Yahoo member that his or her information has been requested and then to disclose the information if no action is taken by the user. Currently, any company can allege damaging speech and request private information from an ISP. If the company's subpoena is approved by a court, the ISP is legally bound to disclose the information. This, say privacy advocates, discourages and infringes people's right to speak anonymously. In a ruling issued last October, a Florida appeals court ruled that eight individuals who had posted defamatory information about a company's CEO should have their anonymity stripped. In another case, Timothy McVeigh, a Navy veteran, had his identity revealed to the Navy by AOL because the Navy was curious about an online profile of McVeigh's that described his marital status as "gay." Privacy advocates hoped that this case would get momentum going in the opposite direction. "In a lot of these cases, the court can determine whether or not there was libel without knowing the identity of a person," said Gelman. "We are not saying that in all cases one's identity should remain unknown," Berner said. "If someone does something illegal, then there would be cause to have that person's anonymity stripped." Representatives for the defendants argued that Rural/Metro's case had many holes in it, but that its real motivation behind filing the lawsuit was to use the court's discovery process to intimidate the individuals who were posting messages on its message board. For example, the company asserted that the individuals were current or former employees of the company. However, as it stated in the complaint itself, the company had no idea who these individuals were, so they could not have known whether they were employees. Second, the company said the defendants possessed or had access to confidential business information. The company believed the defendants would disclose this information on the Yahoo message board or elsewhere if they were allowed to continue. However, the Electronic Frontier Foundation and the Liberty Project said this was bogus. Gelman said Rural/Metro should have been required to identify the specific messages that gave the impression that the individuals had confidential information and made them believe that it would be made public in the future. Rural/Metro did not do so in its original complaint. Gelman has, since Friday, explained that if Rural/Metro's purpose was to recover damages, they would not have dropped the suit. John Banas, Rural/Metro's senior vice president and general counsel, said this was not the case. In a press release, Banas said "the company believes there is no need to continue to pursue the action at this time and trusts that individuals will be mindful of their actions and use the Internet responsibly." Rural/Metro spokeswoman Liz Merritt said that the company saw it as wasteful to continue to pursue a legal remedy for damages when the issue had been resolved. The four defendants are no longer posting any messages on the company's message board. "Between the time that we filed the suit and the time that we dropped it, we had resolved the confidential issue and so the lawsuit became pointless," Merritt said. Cases like this will continue to be filed by companies. Gelman explained that because the Internet gives everyone an equally authoritative voice, companies will continue to question whether those with confidential information are posting on their message boards. However, privacy advocates hope that rulings might start falling in their favor. Privacy advocates would have liked to have come away with some sort of guidance for ISPs. "It was in the interest of Yahoo to have a precedent set," Berner said. "They need a standard by which the entire (ISP) community would know what the terms are for disclosing information." wired.com and wired.com

To: Jeffrey S. Mitchell who wrote (1167)	2/28/2001 4:27:14 PM
From: Jeffrey S. Mitchell	Read Replies (1) \| Respond to of 12465

Re: 2/26/01 - [TMRT] Newsbytes: ACLU Defends Internet Anonymity ACLU Defends Internet Anonymity By David McGuire, Newsbytes WASHINGTON, D.C., U.S.A., 26 Feb 2001, 4:38 PM CST In a pair of civil actions filed on opposite coasts today, the American Civil Liberties Union (ACLU) renewed its stance that online critics and other speakers should be allowed to remain anonymous if they so choose. In Washington State, the ACLU filed a motion to quash a subpoena that would force an Internet service provider (ISP) to reveal the identity of a user participating in an online bulletin board discussion. Meanwhile, in Pennsylvania, the ACLU moved to block a state Appeals Court Justice from using the courts to ferret out the identity of an online critic. "The Supreme Court has made it very clear that it believes anonymity (to be) a very fundamental First Amendment principle," ACLU attorney Ann Beeson told Newsbytes today. For the past few years, Beeson said, as the Internet has grown, the number "frivolous" defamation lawsuits aimed at exposing and, the ACLU believes, intimidating online speakers has grown tremendously. "We started following it as soon as it became a trend," she said. To protect the anonymity of online speakers, the ACLU has asked the courts to impose a higher legal standard on plaintiffs seeking to sue online speakers for defamation, Beeson said. By requiring plaintiffs to prove that they have suffered "actual economic harm" from an alleged online attack, the courts could strike a good balance between the real needs of plaintiffs and the constitutional right of speakers to remain unnamed. To drive home that argument, the ACLU has argued that most online speech should be regulated under laws governing "slander" rather than those governing "libel." Slander is spoken defamation, while libel refers to defamatory statements that have been published. Many courts in the past have applied the "actual economic harm" standard to slander, but not to the more serious offense of libel, Beeson said. But while bulletin board discussions are written and published - in a sense - Beeson argued that they are more akin to conversations than to written texts. "We aren't arguing for absolute immunity," Beeson said, conceding that targets of real online defamation should have an avenue for pursuing their antagonists. In the Washington case, the ACLU is working in conjunction with fellow civil liberties group the Electronic Frontier Foundation (EFF) to prevent 2TheMart.com from uncovering the identities of an Internet user who used the psuedonym "NoGuano" on an online discussion board that featured comments about the company. In Pennsylvania, the ACLU is defending the publisher of an online political "zine" from an appeals court justice who was criticized in the publication. The 2TheMart Web site was not functioning properly as of this writing and other attempts to contact the company were not successful. Reported by Newsbytes.com, newsbytes.com . 16:38 CST newsbytes.com

To: Jeffrey S. Mitchell who wrote (1167)	3/3/2001 3:13:48 AM
From: Jeffrey S. Mitchell	Respond to of 12465

Re: 12/15/00 - JOAN MELVIN, Appellee, v.JOHN DOE, ET AL., Appellants.; BRIEF AMICUS CURIAE OF AMERICA ONLINE, INC. AOL stresses its commitment to maintain the anonymity of its users... ===== JOAN MELVIN, Appellee, v. JOHN DOE, ET AL., Appellants. ____________________________________________________________ BRIEF AMICUS CURIAE OF AMERICA ONLINE, INC. [edit] In general, AOL can, through its customer records, connect a particular screen name of an AOL user with the identity information that was provided to AOL during the registration process for the account associated with that screen name. However, in order to protect the privacy and free speech interests of its subscribers, AOL has adopted and published a Privacy Policy under which AOL generally will not disclose such identity information in the absence of proper legal process, such as a valid subpoena. Due in part to its large user population, AOL receives a tremendous number of such subpoenas on a regular basis. In the year 2000, for example, AOL received approximately 475 civil subpoenas, the vast majority of which sought identity information about an AOL subscriber with a particular screen name. In other words, AOL was subpoenaed to reveal such identity information on average more than once every day. AOL therefore has a strong interest in the establishment of appropriate legal standards for the issuance and enforcement of subpoenas that seek identity information about anonymous online speakers. AOL’s interests are focused in three areas: · AOL greatly values the privacy and free speech interests of its subscribers and is committed to protecting those interests. As noted above, AOL has adopted a Privacy Policy providing that it will not release identity information in the absence of valid legal process. Unlawful issuance or enforcement of a subpoena therefore would disrupt the commercial understanding between AOL and its members and may lead to a loss of present and future business. See In re Subpoena Duces Tecum to America Online, Inc., Misc. Law No. 40570, 2000 WL 1210372 at *5 (Va. Cir. Ct. 2000) (“It can not be seriously questioned that those who utilize the ‘chat rooms’ and ‘message boards’ of AOL do so with an expectation that the anonymity of their postings and communications generally will be protected. If AOL did not uphold the confidentiality of its subscribers . . . one could reasonably predict that AOL subscribers would look to AOL’s competitors for anonymity. As such, the subpoena duces tecum [seeking the identity of an AOL subscriber] potentially could have an oppressive effect on AOL.”) (attached hereto as Attachment B). [2] · Having to monitor and respond to such a large volume of subpoenas imposes a tremendous resource burden on AOL both in terms of costs and personnel. Thus, AOL has a great interest in ensuring that subpoenas and related legal processes are not abused and are instead issued and enforced only in connection with legally redressable injuries. · AOL obviously would like to encourage the continued growth and development of the Internet and other online fora. AOL strongly believes that the ability of users to speak and interact on a pseudonymous and anonymous basis increases the diversity and value of online discourse and debate. Accordingly, AOL has an interest in ensuring that such speech is not chilled — and that the growth of the online medium is not stunted — by potential abuse of legal processes to compel disclosure of the identities of anonymous online speakers. In addition to its interests in the general issue of the appropriate legal standards for compelled disclosure of the identities of online speakers, AOL has a particular interest in this specific proceeding. As set forth below in the Statement of the Case, Plaintiff Melvin initially filed her defamation action against a John Doe defendant in the Loudoun County Circuit Court in Virginia. Melvin subsequently caused the court to issue a subpoena directing AOL to provide identity information concerning the Doe defendant. The Doe defendant, appearing anonymously through counsel, successfully moved to dismiss the case for lack of jurisdiction in the Virginia court. See Melvin v. Doe, 1999 WL 551335 (Va. Cir. Ct. June 24, 1999). Accordingly, AOL was not required to respond to the subpoena at that time. Melvin subsequently filed this lawsuit in Pennsylvania against multiple Doe defendants and once again issued a subpoena to AOL seeking the names of those defendants. The outcome of this appeal will determine whether the identities of the Doe defendants must be revealed. In view of these interests, AOL wishes to participate in this matter as amicus curiae pursuant to Rule 531 of the Pennsylvania Rules of Appellate Procedure. [2] See generally NAACP v. Alabama, 357 U.S. 449, 459-60 (1958) (recognizing a legally cognizable interest in an association protecting the privacy of its membership due to “[t]he reasonable likelihood that the Association itself through diminished financial support and membership may be adversely affected if production [of identity information] is compelled”). aclu.org (Note: The entire brief is 29 pages and requires a PDF file viewer)

To: Jeffrey S. Mitchell who wrote (1167)	1/17/2002 9:08:18 AM
From: Jeffrey S. Mitchell	Respond to of 12465

Re: "...an illegitimate use of the courts to silence and retaliate against speakers." Gary Dobry's outlandish and abusive attempt to unmask people on SI is not the first time someone has, in the words of AOL, made "an illegitimate use of the courts to silence and retaliate against speakers." TMRT tried the same thing nearly a year ago. The case was taken up by the local ACLU, which ultimately prevailed in getting the subpoena quashed. 2theMart (TMRT) 1/19/01 - WSJ: Investor Suit Against 2TheMart Underscores Power of the Web Message 15209646 1/19/01 - TheTruthseeker.Net Investigative Journalism Research Reports on 2themart.com are now available for free to the general public. Message 15211795 2/01 - Company Blames Failure on Internet Messages Message 15324769 2/12/01 - Motion to Quash subpoena served on Silicon Investor to reveal information on "Bear Down" Message 15336833 2/27/01 - CNET: ACLU stands behind John Does online Message 15415591 2/26/01 - ACLU: In Two Significant Cases, ACLU Seeks to Protect Anonymous Online Speakers from Legal Intimidation Message 15415608 2/26/01 - ACLU-WA: Free Speech Advocates Seek to Protect Anonymous Speech on Internet Message 15415636 2/26/01 - Memorandum in Support of Motion of J. Doe to Quash Subpoena Issued to Silicon Investor/Infospace, Inc. Message 15415657 2/27/01 - NewsFactor: ACLU Defends Internet Anonymity Message 15426794 2/26/01 - Newsbytes: ACLU Defends Internet Anonymity Message 15426965 4/20/01 - AP: Judge Rules in Chat Room Case Message 15694888 4/23/01 - Seattle Times: Court ruling big win for Net privacy Message 15712798 - Jeff