STATEMENT OF INTEREST OF AMICUS CURIAE AMERICA ONLINE, INC.
AOL’s interest in this case stems both from its general interest as the world’s largest
interactive computer service provider in the appropriate legal standards for compelled
disclosure of identity information about otherwise anonymous online speakers (including
AOL’s subscribers) and from its particular involvement in previous proceedings in this
matter.
AOL provides an interactive computer service to over 27 million subscribers. This
service permits subscribers to access the public Internet and World Wide Web, as well as
online content available only on AOL’s proprietary system. Moreover, AOL subscribers are
able to speak out on any of a plethora of online sites established for the free exchange of
ideas. These sites, which include web pages, message boards, chat rooms, and bulletin
boards, enable users to offer their thoughts to all who care to read them and to respond to
postings made by others.1/
To become an AOL subscriber, a person must register with AOL and agree to pay a
monthly fee. During AOL’s registration process, these subscribers provide AOL with certain
basic identity information (e.g., name, address, and credit card or other payment information).
A subscriber also chooses one or more “screen names” or pseudonyms — which may or may
not bear any resemblance to his or her actual name — for use in connection with the account.
The screen name in effect becomes the name by which the subscriber is known online
1/ Web pages are online areas in which individuals can “publish” content that is available
for viewing and use through the World Wide Web. Message boards and bulletin boards are
sites on the Internet or on proprietary online services where users can post messages to be
read later by others. Chat rooms are electronic fora in which multiple users may conduct realtime,
computer-to-computer conversations with statements of each speaker momentarily
appearing on the screens of each participant.
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(although of course a subscriber may choose to disclose his or her real name in any online
interaction). Thus, much, if not most, of the speech on the Internet and on AOL’s service is
pseudonymous in nature: the reader of a posting on a message board, for example, typically
will know only the poster’s screen name.
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
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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
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”).
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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.
STATEMENT OF JURISDICTION
Amicus Curiae AOL adopts Appellant Does’ statement of jurisdiction.
SCOPE AND STANDARD OF REVIEW
Amicus Curiae AOL adopts Appellant Does’ statement of the scope and standard of
review.
ORDERS IN QUESTION
The Court of Common Pleas of Allegheny County issued an Opinion and two Orders
that give rise to Does’ Appeal and this Amicus Curiae Brief. A copy of the Opinion dated
November 15, 2000, is attached hereto as Attachment A pursuant to Rule 2111(b) of the
Pennsylvania Appellate Rules of Procedure. This Opinion has not been published in any
reporters.
The Court entered two Orders pursuant to its Opinion. The first read as follows:
On this 14th day of November, 2000, it is hereby ORDERED that defendants’
Motion for Summary Judgment is denied.
In the second Order, the Court held as follows:
On this 15th day of November, 2000, it is ORDERED that:
(1) except as provided for in paragraph (2), defendants’ motion for a
protective order is denied; and
(2) discovery related to the identity of the defendants shall be subject to
a confidentiality order, which the parties shall prepare, consistent with the
Opinion which accompanies this court order.
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STATEMENT OF QUESTION INVOLVED
Did the trial court properly determine that, in view of the significant First Amendment
protection accorded to anonymous speech, a plaintiff should be able to unmask the identity of
an anonymous online speaker only after demonstrating that the alleged claims are legally
viable?
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STATEMENT OF THE CASE
Plaintiff Melvin initially filed her defamation action against a John Doe defendant in
the Loudoun County Circuit Court in Virginia on March 15, 1999. The suit alleged that the
John Doe had published defamatory statements concerning Melvin on a website
(www.members.aol/grantst99/politics) that the Doe had created through the AOL service.
After filing suit and before service of process on the defendant, Melvin caused the Virginia
court to issue a subpoena duces tecum directing that AOL produce “[a]ll documents which
identify the individual or entity who owns, leases or subscribed to AOL to open the website”
at issue in this case. After AOL provided notice of the subpoena to the AOL subscriber
whose account was used to establish the website, the Doe defendant made a special
appearance in the Virginia court (anonymously through counsel) for purposes of challenging
the jurisdiction of that court. The Virginia court granted defendant’s motion to dismiss for
lack of personal jurisdiction, and accordingly AOL was not required to respond to the
subpoena at that time. See Melvin v. Doe, 1999 WL 551335 (Va. Cir. Ct. June 24, 1999).
Melvin subsequently filed this lawsuit in Pennsylvania against multiple Doe
defendants (the complaint alleged that the additional Doe defendants had conspired with John
Doe in publishing the purportedly defamatory statements on the website). She immediately
sought discovery designed to obtain the identity of the Doe defendants, including issuing a
subpoena to AOL. Following some preliminary proceedings, the trial court issued the opinion
and two orders that are the subject of this appeal. In its Opinion, the trial court agreed with
the Doe defendants that the First Amendment and “[f]ederal case law protect[] anonymity for
political speech that is not actionably false.” Melvin v. Doe, No. GD99-10264, slip op. at 6
(Nov. 15, 2000) (hereinafter “Trial Ct. Op.”). Moreover, the court recognized that unmasking
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the identity of an anonymous speaker may cause the defendants greater injury than any
subsequent damages award: “In the present case . . . the punishment which the speaker fears
[being forced to give up anonymity] may be inflicted even though the jury ultimately
determines that the evidence does not support a defamation finding.” Id. at 13. Accordingly,
the court held that “[a] plaintiff should not be able to use the rules of discovery to obtain the
identity of an anonymous publisher simply by filing a complaint that may, on its face, be
without merit.” Id. at 2 n.2. To prevent such a result, the court further held that “plaintiff
should not be permitted to engage in discovery to learn the identity of the Doe defendants
until the Doe defendants [have] had an opportunity to establish that, as a matter of law,
plaintiff could not prevail in this lawsuit.” Id. at 2.
The trial court concluded, however, that the Doe defendants had failed to demonstrate
that Melvin could not prevail as a matter of law and accordingly denied the Doe defendants’
motion for summary judgment. In addition, the court found that further proceedings on the
merits could not be conducted without disclosure of the Doe defendants’ identities because,
inter alia, that information would be relevant to the factfinder in determining whether the
statements at issue were false. See id. at 3-4. Accordingly, the court denied the Doe
defendants’ motion for a protective order and permitted Melvin to engage in discovery
seeking the defendants’ identity (subject to a confidentiality order).
The Doe defendants appealed to this Court. AOL — while not taking a position on the
merits of the summary judgment motion — files this Brief Amicus Curiae urging this Court to
approve and endorse the trial court’s decision to protect the First Amendment interests in
anonymous speech by testing the viability of Melvin’s claims as a matter of law before
requiring disclosure of the Doe defendants’ identities.
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SUMMARY OF ARGUMENT
The recent proliferation of “John Doe” litigation in which a person subject to
anonymous online criticism files suit — sometimes without any viable claim — and seeks to
use the power of a court to breach the veil of anonymity threatens to transform judicial
processes into instruments for overriding online speakers’ First Amendment rights. A long
line of cases makes clear that the First Amendment to the United States Constitution protects
anonymous speech and that compelled disclosure of the identity of an anonymous speaker is
appropriate only if the party seeking such identity information survives a heightened standard
of scrutiny. Although in some cases a complaint may meet this standard (by, for example,
including clear evidence that an actionable tort has been committed), in many other cases, as
the lower court recognized, such John Doe lawsuits are merely pretextual. In these latter
cases, the lawsuit serves as little more than a vehicle for abusive discovery unrelated to the
pursuit of any viable cause of action.
To guard against that possibility, the court below permitted the John Doe defendants
to litigate certain merits issues through the summary judgment stage before permitting
discovery designed to unmask the defendants’ identities. In so doing, the court adopted a
solution chosen by a number of courts presented with similar situations. See, e.g., Columbia
Ins. Co. v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999); In re Subpoena Duces Tecum to
America Online, Inc., Misc. Law No. 40570, 2000 WL 1210372 (Va. Cir. Ct. 2000) (attached
hereto as Attachment B); Dendrite International v. John Does, No. MRS C-129-00 (N.J.
Super. Ct. Nov. 23, 2000) (attached hereto as Attachment C). While AOL takes no position
as to the lower court’s resolution of the underlying merits of the defendants’ motion for
summary judgment, it urges this Court to approve and endorse the lower court’s decision to
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test the merits and viability of Melvin’s claims before permitting discovery of the John Does’
identities. This approach is an essential means for protecting anonymous online speakers’
First Amendment rights.
ARGUMENT
I. THE PROLIFERATION OF “JOHN DOE” LAWSUITS IN WHICH
PLAINTIFFS SEEK THE IDENTITY OF ANONYMOUS ONLINE SPEAKERS
THREATENS TO CHILL FREE AND PROTECTED ONLINE SPEECH.
The explosion of anonymous and pseudonymous speech on the Internet and in other
online fora has engendered a growing number of civil cases in which plaintiffs claiming to
have been injured by what someone has said under the cover of a pseudonym bring lawsuits
designed to unmask and potentially punish the speaker.3/ Typically, as here, these suits
commence as one-sided affairs, with the alleged victim filing a complaint against one or more
“John Doe” defendants who are not served because their real identities are not known. The
first — and sometimes only — activity in these cases is the issuance of subpoenas to
interactive service providers such as AOL that may possess information that can identify, or at
least help to identify, the speaker.
While sometimes these “John Doe” lawsuits target speech that was clearly tortious and
injurious to the plaintiff, on other occasions these suits can constitute an illegitimate use of the
courts to silence and retaliate against speakers whose statements, while unpleasant from the
standpoint of the defendant, were not unlawful. Indeed, in one case, a company filed a John
Doe suit against a defendant who posted messages on a stock message board alleging that
management had “breached their fiduciary responsibility” and urging that the “bastards” be
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fired. The company obtained the identity of the Doe through a subpoena and served him with
the complaint. The Doe, however, threatened to countersue the company for malicious
prosecution, and the company agreed to pay the Doe $40,000 to settle the matter. Aaron
Elstein, Defending Right to Post Message: ‘CEO Is a Dodo,’ Wall St. J., Sept. 28, 2000, at
B1.
Similarly, in a significant number of cases, the complaint seems little more than a
vehicle for discovery: some complaints attack messages posted too long ago to be justiciable;
others complain of messages that are clear statements of opinion that could not form the basis
of a defamation suit;4/ still others fail even to plead the particular postings that the plaintiff
finds offensive.5/ These factors indicate that the only real objective of some of these lawsuits
is identification of the speakers; judicial proceedings in such cases often end once the
subpoenas have been answered and the speakers have been unmasked. The true goal of the
party who brought the lawsuit may have been to silence or even to harass the user
(particularly if the user is revealed to be an employee of the company that was the subject of
(continued from previous page)
3/ See generally Lyrissa Barnett Lidsky, Silencing John Doe: Defamation & Discourse
in Cyberspace, 49 Duke L.J. 855, 858 n.6 (Feb. 2000) (listing numerous examples of such
cases).
4/ See, e.g., Anne Colden, Sending a Message: Companies Go to Court To Stop ‘Cyber-
Smearers,’ Denver Post, Jan. 15, 2001, at E1 (describing lawsuit seeking identity of John Doe
poster who allegedly described company CEO as “an overweight, bald-headed, skirt-chasing
underachiever”); John Eckberg, Internet ‘Free Speech’ Draws Fire, Ire, Cincinnati Enquirer,
Jan. 3, 2001 (describing subpoena seeking identity of John Doe who allegedly stated that
company executive “would litigate the time of day. OOOPS -- I will be in court”).
5/ See, e.g., Mark Thompson, On the Net, In the Dark, California Law Week (Nov. 8,
1999) (available at <http://www.lawnewsnetwork.com/stories/A9068-1999Nov5.html>)
(describing how a John Doe defendant forced a company called ProMedCo to withdraw its
subpoena seeking the Doe’s identity because the underlying complaint failed to identify any
defamatory posting allegedly made by the Doe).
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the posting), to mine the user for information on other users, or, more broadly, to discourage
free speech on the Internet.6/ Obviously, the courts’ compulsory discovery powers do not
exist to advance such goals.
AOL’s own experience demonstrates that these types of John Doe lawsuits are a
substantial and growing phenomenon. In the year 2000, for example, AOL received
approximately 475 civil subpoenas, the vast majority of which sought identity information
about an AOL subscriber. This represented an increase of almost 40 percent from 1999.
Thus, on average, AOL was being asked to unmask the identity of a subscriber more than
once a day in 2000. And AOL has hardly been alone. One source, for example, reports that
since June 1998, one or two lawsuits seeking an online identity are filed per week in Santa
Clara County, the jurisdiction in which Yahoo!’s corporate headquarters are located. See
Blake A. Bell, Dealing with the “Cybersmear,” N.Y.L.J., Apr. 19, 1999, at T3.
6/ See Greg Miller, “John Doe” Suits Threaten Internet Users’ Anonymity, L.A. Times,
June 14, 1999, at A1 (“[T]he growing volume of these suits — and the subsequent dropping
of them in some cases after identities have been disclosed — makes some experts fear that the
legal process is being abused by organizations seeking only to ‘out’ online foes.”). In
February 1999, for example, Raytheon filed a John Doe suit for alleged wrongful disclosure
of confidential information by pseudonymous speakers and subpoenaed the names of 21
individuals from Yahoo!. After Yahoo! supplied the names, Raytheon dropped the suit and
fired four of the Does, who turned out to be Raytheon employees. Elinor Abreu, EPIC Blasts
Yahoo for Identifying Posters, The Industry Standard, Nov. 10, 1999. At least some of the
information claimed by Raytheon to have been unlawfully posted had in fact been disclosed
one month earlier in public filings made by Raytheon itself. Ross Kerber, Raytheon Had
Revealed “Secrets,” Boston Globe, Apr. 9, 1999, at C1.
Similarly, in another case, AnswerThink filed a John Doe suit against a poster who
allegedly stated that the company was “poorly managed” and described executives as
“juvenile” and a “dullard.” After obtaining the Doe’s identity with a subpoena, AnswerThink
dropped the suit and fired the poster (who was an AnswerThink employee). John Snell,
Online Anonymity on Internet Message Boards Crumbles Before Subpoenas, The Oregonian,
Oct. 30, 2000.
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The proliferation of these lawsuits and subpoenas threatens to have a chilling effect on
protected speech and the growth of the online medium. Although the use of legal processes to
punish and deter truly tortious and harmful speech is appropriate, filing lawsuits simply as a
pretext to compel the disclosure of a speaker’s identity “threaten[s] not only to deter the
individual who is sued from speaking out, but also to encourage undue self-censorship among
the other John Does who frequent Internet discussion fora.” Lyrissa B. Lidsky, Silencing
John Doe: Defamation & Discourse in Cyberspace, 49 Duke L.J. 855, 861 (Feb. 2000)
(hereinafter “Silencing John Doe”). Indeed, “[a]s more and more suits are filed, many
Internet users will come to recognize the ease with which their online anonymity can be
stripped simply by the filing of a libel action, and they will censor themselves accordingly.”
Id. at 889. In view of this threat, it is incumbent on courts to apply a rigorous standard to
ensure that “[p]eople who have committed no wrong [can] participate online without fear that
someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain
the power of the court’s order to discover their identity.” Columbia Ins. Co. v.
Seescandy.com, 185 F.R.D. 573, 578 (N.D. Cal. 1999). |
