Re: 11/03-1/04 - [Zwebner] Cyberslapp.org: Zwebner v. Does; Final Motion To Quash.pdf; Memorandandum of Law; Response To Motion To Set Aside
Zwebner v. Does
Plaintiff Michael Zwebner is layman who has previously filed lawsuits and issued subpoenas to unmask anonymous internet posters who are not defendants in the lawsuits. It appears that Mr. Zwebner is not a US citizen and does not reside in the US. In federal court in Florida, Mr. Zwebner has now filed a lawsuit for defamation, intentional infliction of emotional distress, harassment, libel, and slander, asking for $18,000,000 in damages and an injunction against future speech. In this latest case, Lycos (operator of the Raging Bull forum) refused to comply with the subpoena after reviewing the Complaint. In addition, one Doe filed a Motion to Quash the subpoena to unmask identities of numerous, unnamed posters. The Court granted the motion. Mr. Zwebner filed a Motion to Reconsider that ruling based on procedural grounds. The Court granted the Motion for Reconsideration, without prejudice to another motion to quash. In addition, Mr. Zwebner filed a Motion to Compel Lycos to respond to the subpoena, which Lycos opposed.
Adobe Acrobat Documents:
Final Motion To Quash.pdf: cyberslapp.org
Memorandandum of Law: cyberslapp.org
Response To Motion To Set Aside: cyberslapp.org
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U.S. District Court Southern District of Florida
(Miami Division)
CIVIL ACTION, CASE #: 03-CV-22328
Judge Moore
Michael J. Zwebner,
Plaintiff,
v.
JOHN DOES, 1-100,
Defendants.
MOTION TO QUASH
The undersigned, Law Office of L. Van Stillman, P.A., files this Motion to Quash a subpoena issued by this Court in the above-styled litigation, as said subpoena pertains to John Doe #32, a/k/a Me Too Tom, pursuant to Rule 45 of the Federal Rules of Criminal Procedure, and alleges as follows:
1. This is an action to quash the omnibus subpoena issued by this Court, on behalf of the Plaintiff, to Lycos Network for the disclosure of the true names of the pseudonyms used on the Lycos Bulletin Board, and for such other information as specified in the subpoena.
2. John Doe #32, a/k/a Me Too Tom, is objecting to the issuance of the subpoena as it pertains to John Doe #32 and is requesting this Honorable Court to quash said subpoena and/or issue, in the alternative, a protective order in favor of Me Too Tom, prohibiting and preventing the Lycos Network from revealing the true name of the individual and or entity using the pseudonym “Me Too Tom”.
3. In support of its motion, John Doe #32 would allege that:
(a) The Plaintiff, Michael J. Zwebner, has failed to show that its need for the identity information requested outweighs the anonymous speakers First Amendment rights;
(b) The Constitutional protections of freedom of association outweighs the Plaintiff’s need to be granted access to the true name of John Doe #32;
(c) The Plaintiff has failed to establish in its pleadings that it has a legitimate good-faith basis to contend that it may be a victim of conduct actionable in this jurisdiction against John Doe #32; and
(d) The Plaintiff has failed to establish that the identity of John Doe #32 is centrally needed to advance his claim.
WHEREFORE, for the reasons set forth above, the Defendant, John Doe #32, a/k/a Me Too Tom, respectfully requests this Honorable Court to quash the subpoena as it pertains to John Doe #32, or, in the alternative, to issue a protective order preventing the Lycos Network from divulging the true identity of John Doe #32, a/k/a Me Too Tom.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY a copy of the foregoing has been furnished this ____ day of November, 2003, to: Michael J. Zwebner, 407 Lincoln Road, Suite 6-K, Miami Beach, Florida 33139.
LAW OFFICE OF L. VAN STILLMAN, P.A.
1177 George Bush Blvd., Suite 308
Delray Beach, Florida 33483
Telephone: (561) 330-9903
Facsimile: (561) 330-9116
By:
L. Van Stillman, Esq.
Florida Bar No.: 165520
cyberslapp.org
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U.S. District Court
Southern District of Florida (Miami Division)
CIVIL DOCKET
CASE #: 03-CV-22328
Honorable Judge K. Michael Moore
Michael J. Zwebner,
Plaintiff,
v.
JOHN DOES, 1-100,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF
JOHN DOE #32’S (A/K/A ME TOO TOM)
MOTION TO QUASH
CONTENTS
I. INTRODUCTION…………………………………………………… 1
II. STATEMENT OF FACTS…………………………………………… 1
III. ARGUMENT…………………………………………………………. 3
A. JOHN DOE #32 URGES THE COURT TO ADOPT A
BALANCING TEST, REQUIRING MICHAEL J.
ZWEBNER TO SHOW THAT ITS NEED FOR IDENTITY
INFORMATION OUTWEIGHS THE ANONYMOUS
SPEAKERS’ FIRST AMENDMENT RIGHTS……………………3
B. MICHAEL J. ZWEBNER’S DOCUMENT
REQUEST IS OVERLY BROAD AND
IMPINGES ON THE PRIVACY RIGHTS
OF THE LYCOS NETWORK USERS…………………………….5
IV. CONCLUSION………………………………………………………..5
I. INTRODUCTION
This Motion presents an important question of constitutional law: May the constitutionally protected speech, association, and privacy rights of non-litigant internet users be invaded by litigants without prior judicial review? John Doe #32 (a/k/a Me Too Tom) is a subscriber to the Lycos Network and participates in chats on the Lycos sponsored chat room within its internet network. The Plaintiff, Michael J. Zwebner, has filed suit to seek the true identities of those using pseudonyms, more specifically, John Doe #32, within the Lycos Network. Lycos Network hosts online message boards where third-parties may speak to each other, often anonymously, on a wide range of issues including the financial markets, publicly traded companies, and other financial topics. Lycos receives a significant volume of subpoenas from litigants who seek identity information about the anonymous authors of messages posted to these message boards.
This Motion has been filed to quash the subpoena and/or have this Honorable Court issue a protective order preventing the Lycos Network from divulging the true name of John Doe #32. John Doe #32 believes that a litigant should be required to make a threshold showing to a court of its need for the users identity information prior to seeking that information from the thirdparty provider, in this instance, Lycos Network. Given the important constitutional freedoms of speech and association, as well as user privacy interests that are implicated by attempts to seek those users identities, John Doe #32 urges this Court to grant its Motion based upon the pleadings as hereto filed by the parties.
II. STATEMENT OF FACTS
The Lycos Network is an internet site provider which hosts message boards where thirdparties may post messages on a wide variety of topics. The message boards are the online equivalent of a bulletin board where persons may post comments for public viewing. Message board participants discuss financial information, publicly traded companies and other topics. The exchanges on these boards are often opinionated, and the debate is robust. Although some participants identify themselves in their posts, many choose to post messages under a pseudonym “username.”
The Plaintiff in this action, Michael J. Zwebner, has served a subpoena directly to Lycos Network requesting all identifying information and documents, including, but not limited to, computerized or computer stored records and logs, electronic email and postings on online message boards concerning up to 100 usernames, including the request that the pseudonym be pierced and the actual user’s names be identified.
III. ARGUMENT
A. JOHN DOE #32 URGES THE COURT TO ADOPT A BALANCING TEST, REQUIRING MICHAEL J. ZWEBNER TO SHOW THAT ITS NEED FOR IDENTITY INFORMATION OUTWEIGHS THE ANONYMOUS SPEAKERS’ FIRST AMENDMENT RIGHTS
1. The First Amendment Protects the Right to Speak Anonymously on the Internet.
The U.S. Supreme Court has held that the right to freedom of speech under the First Amendment encompasses the right to speak anonymously. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342 (1995) (“an author’s decision to remain anonymous . . . is an aspect of the freedom of speech protected by the First Amendment”); and Talley v. State of California, 362 U.S. 60, 65-66 (1960) (holding unconstitutional a state law prohibiting distribution of anonymous handbills).
A speaker on an internet site is the modern day equivalent of a pamphleteer, as the U.S. Supreme Court has recognized:
Through the use of [online] 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, mail exploders, and newsgroups, the same individual can become a pamphleteer.
Reno v. ACLU, 521 U.S. 844, 870 (1997). Thus, speech on the Internet is entitled to the highest degree of First Amendment protection. Id. See ACLU v. Johnson, 4 F. Supp. 2d 1029, 1033 (D.N.M. 1998), aff’d, 194 F.3d 1149 (10th Cir. 1999) (recognizing a First Amendment right to communicate and access information anonymously through the Internet); In re Subpoena Duces Tecum to America Online, Inc., 52 Va. Cir. 26, 34 (Va. Cir. 2000) (“To fail to recognize that the First Amendment right to speak anonymously should be extended to communications on the Internet would require this Court to ignore either United States Supreme Court precedent or the realities of speech in the twenty-first century”); Dendrite Int’l v. Does, No. MRS C-129-00, slip op. at 18-19 (N.J. Sup. Ct., Morris Cty., Nov. 23, 2000) (“Inherent in First Amendment protections is the right to speak anonymously in diverse contests,” including on the Internet)
2. The Constitution Protects Freedom of Association on the Internet.
The Constitution protects not only freedom of speech but also freedom of association. See Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 558 (1963) (holding unconstitutional a subpoena to intended to discover alleged co-conspirators by compelling release of member identities of NAACP); NAACP v. Alabama, 357 U.S. 449, 466 (1958) (recognizing that a constitutional right to freedom of association protected privacy of NAACP’s membership list).
Protection from compelled disclosure of one’s private associations is a central tenet of the Constitution. As explained by the U.S. Supreme Court in Gibson. It is particularly important that the exercise of the power of compulsory process be carefully circumscribed when [it] tends to impinge upon such highly sensitive areas of freedom of speech . . . freedom of . . . association, and freedom of communication of ideas. Gibson, 372 U.S. at 558 (citation omitted).
3. The Court Should Require the Plaintiff, Michael J. Zwebner, to Show That Its Need for Identity Information Outweighs These Constitutional Rights, Prior to Issuance of a Subpoena Seeking Such Information.
As described above, speakers on the Internet have the First Amendment right to speak anonymously, and a constitutional right of freedom of association. This Court should require Michael J. Zwebner to show that its need for identifying information about such speakers outweighs those constitutional rights, before a subpoena is issued to the Lycos Network seeking that information. Several courts have recently applied such a test (with slightly different variations) in deciding whether the identity information of an anonymous online speaker should be revealed. John Doe #32 would urge this Court to adopt the opinion filed in the case of John Doe vs. 2 TheMart.com, Inc. by the United States District for the Western District of Washington at Seattle on April 26, 2001. A copy of Judge Thomas S. Zilly’s opinion is attached hereto and marked Exhibit “A” for consideration by this Court.
B. MICHAEL J. ZWEBNER’S DOCUMENT REQUEST IS OVERLY BROAD AND IMPINGES ON THE PRIVACY RIGHTS OF THE LYCOS NETWORK USERS.
John Doe #32 believes that the scope of the subpoena is overly broad, and that it seeks “all identifying documents and information” with regard to 100 user names, including, but not limited to, all computer logs, records, email, and postings. Rather than just seeking basic identity information provided by Lycos’ users upon registration, the Plaintiff seeks numerous other unrelated information without setting forth a reasonable basis for requesting this information. The request of the subpoena is, therefore, overly broad. The Electronic Communications Privacy Act (ECPA) prohibits disclosure of the contents of private email communications except under very limited circumstances, none of which apply here. See 18 U.S.C. § 2702. Therefore, by seeking any email communications, public or private, of the 100 usernames in the subpoena, the Plaintiff’s document request is overly broad and contrary to ECPA.
IV. CONCLUSION
For the reasons set forth above, John Doe #32 (a/k/a Me Too Tom) respectfully requests that this Court issue an order quashing the subpoena as it pertains to John Doe #32, or, in the alternative, issuing a protective order prohibiting Lycos Network from divulging any information, including, but not limited to, the true username of John Doe #32. As additional support for its position, the movant would rely on the case of Global Telemedia International, Inc. et. al. v. Doe 1, et al., decided by Judge David Carter of the United States District Court for the Central District of California, a copy of his order is attached and marked Exhibit “B”.
DATED: November 14, 2003
LAW OFFICE OF L. VAN STILLMAN, P.A.
Attorney for John Doe #32
1177 George Bush Blvd., Suite 308
Delray Beach, Florida 33483
Telephone: (561) 330-9903
Facsimile: (561) 330-9116
By:
L. Van Stillman, Esq.
Florida Bar No.: 165520
CERTIFICATE OF SERVICE
I HEREBY CERTIFY a copy of the foregoing has been furnished this ____ day of November, 2003, to: Michael J. Zwebner, 407 Lincoln Road, Suite 6-K, Miami Beach, Florida 33139.
By:
L. Van Stillman, Esq.
cyberslapp.org
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U.S. District Court Southern District of Florida
(Miami Division)
CIVIL ACTION, CASE #: 03-CV-22328
Judge Moore
Magistrate Judge O’Sullivan
Michael J. Zwebner,
Plaintiff,
v.
JOHN DOES, 1-100,
Defendants.
RESPONSE TO PLAINTIFF’S MOTION TO RECONSIDER
AND
MEMORANDUM OF LAW IN SUPPORT
The undersigned, Law Office of L. Van Stillman, P.A., files this Response to the Plaintiff’s Motion to Reconsider this order granting John Doe #32’s Motion to Quash a subpoena issued by this Court in the above-styled litigation, as said subpoena pertains to John Doe #32, a/k/a Me Too Tom, pursuant to Rule 45 of the Federal Rules of Criminal Procedure, and alleges as follows:
1. On November 11, 2003, John Doe #32 received notice from Terra Lycos, Inc. the recipient of a subpoena in this action, that unless John Doe #32 filed a motion to quash the subpoena issued by this Court on or before November 20, 2003, Lycos would comply and deliver all information on John Doe #32 as requested.
2. John Doe #32 contacted the undersigned attorney to respond on November 13, 2003.
3. On November 13 and 14, 2003, the undersigned attempted to contact the Plaintiff, Michael Zwebner, to comply with Local Rule 7.1. The undersigned was unable to contact Mr. Zwebner, although messages were left on his answering machine.
4. On behalf of John Doe #32, the undersigned filed with this Court the Motion to Quash, which was granted as a result of the Plaintiff’s failure to respond.
5. John Doe#32 is not a served defendant in this action, and filed its Motion to Quash for the sole purpose of preventing Lycos from disseminating privileged and confidential information, as discussed in the original Motion, which is hereby adopted as part of this Response.
6. The undersigned has had no contact from the Plaintiff until it was learned that Mr. Zwebner filed a motion for reconsideration of this Court’s Order granting the Motion to Quash.
7. Plaintiff does not dispute that he received the Motion to Quash, only that he feels that Local Rule 7.1 was not complied with. This does not excuse his failure to respond to the original motion within the time frame set forth in the Local Rules of the Southern District of Florida.
8. Plaintiff is a pro se litigant, who says in his motion that he is a layman and therefore should be excused from following the rules. A closer look at Plaintiff reveals that he is a party to an inordinate number of court cases (Exhibit “A”). Accordingly, Plaintiff should not only know the Local Rules, but should be required to follow them, and file his responses to adverse motions within the time periods set.
9. The Plaintiff has failed to present any legal reason why this Court should set aside its previous order. For an order on a motion to be set aside for failure to respond, this Court could look at Plaintiff’s request as a motion to set aside a default (Plaintiff still has not responded). To set aside a default, it is black letter law that the moving party must show:
a. That it has a valid defense to the opposing party’s request; and
b. That the defaulting party did not respond as a result of some form of excusable neglect or other inadvertence.
In the instant matter, Plaintiff has not presented any viable reason why this Court should grant the relief requested. Plaintiff does not state that he did not receive the Motion, but only that counsel did not comply with Rule 7.1, which was complied with.
WHEREFORE, for the reasons set forth above, the John Doe #32, a/k/a Me Too Tom, respectfully requests this Honorable Court deny Plaintiff’s Motion to set aside this Court’s previously issued order to Quash the Supboena as it pertains to John Doe#32.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY a copy of the foregoing has been furnished this 24th day of December, 2003, to: Michael J. Zwebner, 407 Lincoln Road, Suite 6-K, Miami Beach, Florida 33139.
LAW OFFICE OF L. VAN STILLMAN, P.A.
1177 George Bush Blvd., Suite 308
Delray Beach, Florida 33483
Telephone: (561) 330-9903
Facsimile: (561) 330-9116
Email: van@stillman.net
By:
L. Van Stillman, Esq.
Florida Bar No.: 165520
cyberslapp.org |
