Truthseeker - Mentioned in ACLU & EFF's Memo in Support of Motion to Quash - TMRT subpoena of SI posters' identities from Infospace
You're mentioned in the Memorandum in Support of the Motion, part of which I've posted below. Good luck
Is a New Defensive Technique Emerging in Dot Com Class Action Securities Lawsuits? The Message Boards Did It!
There is now an unusual twist to anonymous John Doe cases, and the new twist suggests that a new defensive technique may be emerging in dot com class action securities lawsuits -- message board postings are responsible for a decline in the company's stock price, not securities fraud. On February 26, the American Civil Liberties Union announced that it and the Electronic Frontier Foundation are representing an anonymous "non-party" author of message board postings made on the SiliconInvestor Web site. The author is not targeted as a possible party to the lawsuit in which the subpoena was issued. Rather, 2TheMart.com, Inc. is defending itself against a class action alleging securities fraud and seeks information that it appears to believe is relevant to its defense. It issued a subpoena demanding that Infospace, owner of SiliconInvestor.com, turn over identifying information regarding the accounts of 23 authors of message board postings on the message board site. The ACLU and EFF filed a motion to quash in Federal Court in Seattle, Washington. In its announcement, the ACLU states:
This case differs from many other Internet anonymity cases because J. Doe, who used the pseudonym "NoGuano," is not a party to the case, and no allegations of liability against Doe have been made. While Doe does maintain a Silicon Investor account, Doe never made any statements about 2TheMart, nor has Doe ever posted on Silicon Investor's 2TheMart message board.
"If the courts don't establish a standard for the issuance of subpoenas in cases where the anonymous speaker is not a party, every party in every civil action could start subpoenaing the identities of online speakers in the desperate hope of finding something useful for their case," said Lauren Gelman, director of public policy for the Electronic Frontier Foundation .
aclu-wa.org
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
In re 2TheMart.com, Inc. Securities Litigation
Case No: Misc.
Pending in C.D. California
SACV-9901127 DOC (AMx)
MEMORANDUM IN SUPPORT OF MOTION OF J. DOE TO QUASH SUBPOENA ISSUED TO SILICON INVESTOR/INFOSPACE, INC
Movant John/Jane Doe (hereinafter "Doe") used an internet bulletin board to post messages under the pseudonym "NoGuano." In this action, defendant 2TheMart.com, Inc. served a third party subpoena to InfoSpace Inc., the operator of the bulletin board, demanding that it disclose Doe's true identity. Doe asks this Court to quash the subpoena as it relates to Doe and the other anonymous speakers named in the subpoena ("the Does"), because it violates their First Amendment right to speak anonymously.
1. INTRODUCTION
The underlying litigation is a class action securities fraud case currently pending in US District Court for the Central District of California. The defendant corporation, 2TheMart.com, Inc. (hereinafter known by its ticker symbol "TMRT"), issued a subpoena seeking to have online service provider InfoSpace Inc. reveal the identities of twenty-three speakers who participated pseudonymously on Internet message boards operated by InfoSpace. See Exhibit A. The subpoena does not on its face explain why the identities of these speakers are relevant to the underlying dispute. Indeed, the nature of the suit makes their relevance unlikely. Under these circumstances, enforcement of a "fishing expedition" subpoena would terminate the speakers' First Amendment right to engage in anonymous speech without creating any corresponding benefit. Accordingly, this Court should quash the subpoena. [1]
The syndrome of third party civil subpoenas issued to Internet service providers seeking to breach the anonymity of their users is growing increasingly frequent. [2] It has rarely been subjected to judicial scrutiny, however, partly because of the short time frames typically involved in bringing a motion to quash and partly because many internet service providers do not notify their users before sacrificing their anonymity. This motion presents a good opportunity for the court to clarify that the test used in other settings where the First Amendment protects information against forced disclosure should also be used to evaluate third party subpoenas. The choice to speak anonymously should not be invalidated by judicial process unless it is clearly shown that specifically identified information about an anonymous poster is central to the claims of the party seeking the information, that those claims are viable, and that the party can acquire the information in no other manner.
2. STATEMENT OF FACTS
3. BACKGROUND REGARDING INTERNET BULLETIN BOARDS
The Internet is a democratic institution in the fullest sense. It serves as the modern equivalent of Speakers' Corner in England's Hyde Park, where ordinary people may voice their opinions, however silly, profane, or brilliant they may be to all who choose to read them. As the Supreme Court opined in Reno v. ACLU, 521 U.S. 844, 870 (1997), "[f]rom the publisher's point of view, [the Internet] constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers. . . . Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, . . . the same individual can become a pamphleteer." The government's ability to impinge upon speech is stringently limited on the Internet, just as it would be in a traditional public forum. Id.
To allow these town criers and pamphleteers to find each other, InfoSpace created a website called "Silicon Investor" that, in part, contains a series of electronic bulletin boards for the expression of user opinions around the central topic of investment in publicly-traded securities. The Silicon Investor web site, see www.siliconinvestor.com, features a series of message boards for various publicly-traded companies, and it permits anyone to post messages to these boards. While nothing prevents individuals from using their real names, most individuals who post messages on these boards generally do so under pseudonyms – similar to the old system of truck drivers using "handles" when speaking on their CB radios. Choosing one of these colorful monikers protects the speaker's identity, and such privacy generally encourages the uninhibited exchange of ideas and opinions. Silicon Investor has a privacy policy that states in part, "Individually identifiable information will not be released without that individual's prior consent." siliconinvestor.com. Indeed, Silicon Investor will revoke service to anyone who uses its message boards to invade another’s privacy. See go2net.com (terms of service).
An important aspect of message boards that distinguishes them from almost any other form of published expression is that a person who disagrees with statements on a message board can respond to them immediately at little or no cost, and that response will have the same prominence as the offending message. A message board is thus unlike a newspaper, which cannot be required to print a response to its criticisms. Miami Herald Publ'g. Co. v. Tornilllo, 418 U.S. 241 (1974). Corporations and individuals can reply immediately to criticisms on a message board, providing facts or opinions to vindicate their positions, and thus, potentially, persuading the audience that they are right and their critics wrong. Because many people regularly revisit the same message boards, the response is likely to be seen by much the same audience as the original criticism. In this way, the Internet provides the ideal proving ground for the proposition that the marketplace of ideas, rather than the courtroom, provides the best forum for resolution of disagreements about the truth of disputed propositions of fact and opinion.
4. THE SUBPOENA TO INFOSPACE
The underlying litigation is a class action securities fraud case where plaintiffs claim they were injured in their purchases or sales of TMRT securities as a result of fraudulent statements the defendants communicated to the investing public. The case relies largely on the fraud-on-the-market theory, which presumes that the market price of an efficiently-traded security fluctuates based on the information available to investors. See Basic, Inc. v. Levinson, 485 U.S. 224 (1988). As applied to Internet bulletin boards, the theory posits that a stock's price might change to the extent that investors choose to heed the information contained in pseudonymously authored messages. Because a pseudonymous message does not identify its author, the author's identity, if not otherwise known to investors from other sources, cannot affect stock price.
One of Silicon Investor's message boards pertains to TMRT. To date, almost 1500 messages have been posted on the TMRT board, covering an enormous variety of topics and posters. Investors and members of the public discuss the latest news about the company, what new businesses it may develop, the strengths and weaknesses of the company's operations, and what its managers and employees might do better. The messages posted on the Silicon Investor web site are archived, so that any user—including TMRT or its counsel—can read prior postings.
On January 24, 2001, TMRT served a subpoena from this Court upon InfoSpace, demanding that it reveal identifying information about twenty-three Silicon Investor users who preferred to identify themselves by pseudonyms like "The Truthseeker", "Edelweiss", and "NoGuano" (the latter used by Doe). See Exhibit A. Unlike some internet services who do not inform their users about subpoenas of this sort, InfoSpace notified the Does by e-mail of the subpoena and gave them time to file a motion to quash.
Prior to and during the time period covered by the TMRT securities litigation, Doe was a regular user of the Silicon Investor web site and discussed various companies on its bulletin boards. Review of the postings archived on the site shows that the user "NoGuano" has never posted on Silicon Investor's TMRT message board. Nonetheless, Doe's constitutionally protected choice to speak anonymously will be sacrificed as part of TMRT's general fishing expedition if the subpoena is not quashed. The arguments outlined below would apply even if Doe had discussed TMRT on the Internet, perhaps even more forcefully. However, given that there is no known link between Doe and TMRT, the loss of First Amendment protection suffered in this case appears to have no countervailing benefit. Accordingly, Doe requests this Court quash the subpoena to the extent it calls for identification of all the Does, because its enforcement would violate their rights under the First Amendment.
(Go to URL link for remainder of the Memorandum in Support of the Motion) |
