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Pastimes : Gary Dobry Subpoenas 41 SI Aliases -- Ignore unavailable to you. Want to Upgrade?

To: DizzyG who wrote (205)	1/21/2002 3:24:23 PM
From: scion	Respond to of 1136

2.Recent Cases Anonymous Internet Speech Support the Conclusion that Close Judicial Scrutiny Is Required. The recent set of cases concerning the use of civil subpoenas to unmask Internet speakers demonstrates a growing judicial concern with the use of the civil litigation process to deter Internet speech. In 2TheMart, the Federal District Court in Seattle, Washington established the appropriate standard for evaluating the merits of “a civil subpoena that seeks the identity of an anonymous Internet user who is not a party to the underlying litigation”. Id. The 2TheMart standard is a balancing test involving four factors, which ask “whether: (1) the subpoena . . . was issued in good faith and not for any improper purpose, (2) the information sought relates to a core claim or defense, (3) the identifying information is directly and materially relevant to that claim or defense, and (4) [adequate] information . . . is unavailable from any other source.” Id. This test for subpoenas seeking the identity of third parties is consistent with a test recently applied where the plaintiff was seeking to identify defendants in a trademark action. Columbia Ins. Co. v. Seescandy.com (N.D. Cal. 1999) 185 F.R.D. 573. The court required the plaintiff to make a good faith effort to communicate with the anonymous defendants and provide them with notice that the suit had been filed against them, thus giving them an opportunity to defend their anonymity. The court also compelled the plaintiff to demonstrate that it had viable claims against such defendants. Id. at 579. This demonstration included a review of the evidence in support of the trademark claims made against the anonymous defendants. Here, the California anti-SLAPP law allows a defendant to raise the critical issue of the validity of Plaintiff’s claims before a subpoena is issued to his online service provider seeking his identity. Given the clear Constitutional issue of protecting his anonymity in addition to protecting his speech, judicious application of the anti-SLAPP law to such situations can help prevent a situation in which a Defendant is forced to bring a Motion to Quash (which is usually needed on much shortened time). More importantly, though, through its attorney’s fees provisions, it can serve to dissuade those who might resort to use of the civil litigation process to both identify and silence their critics. This, in the end, is the goal of the anti-SLAPP law. eff.org