IP: Free Speech Advocates Seek to Protect Anonymous Speech on Internet

[David Farber <dave () farber net>]

February 26, 2001

Free Speech Advocates Seek to Protect Anonymous Speech on Internet

Seattle- In a case involving free speech and privacy rights online, the
American Civil Liberties Union (ACLU) and the Electronic Frontier
Foundation (EFF) today asked a federal court in Washington to quash a
subpoena that would force an Internet service to disclose the identity of a
person who spoke anonymously on an Internet bulletin board.

The ACLU and EFF are representing J. Doe in seeking to block a subpoena by
2TheMart.com, Inc., which is currently defending itself against a
class-action lawsuit alleging the company engaged in securities fraud.  The
subpoena requests InfoSpace turn over the identities of 23 speakers who
used pseudonyms in participating on the Silicon Investor Web site owned by
InfoSpace.  The motion to quash the subpoena was filed in U.S. District
Court in Seattle.

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, a
civil liberties organization working to protect rights in the digital
world.  "The courts should not allow subpoenas to be used for 'fishing
expeditions' when individuals' First Amendment rights are at stake.  The
chilling effect on free speech would be catastrophic."

"People commonly use pseudonyms when speaking on the Internet.  This
promotes a diversity of viewpoints in cyberspace.  The right to speak
anonymously on an

Internet bulletin board should be upheld just as is the right to distribute
a leaflet using a pseudonym," said Aaron Caplan, staff attorney for the
American Civil Liberties Union, an organization with an 80-year history of
defending freedom of speech.

In their brief filed today, the ACLU and EFF argue that the Court should
adopt the same test currently used to determine whether to compel
identification of anonymous sources of journalists or members of private
organizations.  Under that test, the Court must first determine whether the
person seeking the protected private information (in this case
2TheMart.com) has a genuine need for the information in the context of the
case and cannot discover the information any other way.  If so, the Court
must then balance the harm to the anonymous speakers against the
plaintiff's need to discover the identity of the speaker.  Anonymity should
be preserved unless the identity of the anonymous person is clearly shown
to be of central importance to the case.

2TheMart.com was a fledgling company that intended to launch an online
auction house.  After its stock price plunged in 1999, a number of
investors sued for securities fraud, alleging that the company had misled
them about its prospects.  Like many Internet start-ups, 2TheMart.com had a
number of people who chatted about the company on investor-related bulletin
boards.  One of these bulletin boards was operated by Silicon Investor, a
Web site now owned by Seattle-based InfoSpace.  The postings were made
under 23 different user names, including "The Truthseeker," "Edelweiss,"
and "NoGuano."

John Doe is being represented by ACLU staff attorney Aaron Caplan and Cindy
Cohn, legal director and senior staff attorney for EFF.

The brief may be found at the EFF Web site at http://www.eff.org and the
ACLU Web site at http://www.aclu-wa.org.


Contacts:
Doug Honig
ACLU
(206) 624-2184

           Lauren Gelman
Electronic Frontier Foundation
(202) 487-0420

                                 --END--



________________________________________________
  Lauren Gelman                 Phone: 202/487-0420
  Director of Public Policy            email: gelman () eff org
  Electronic Frontier Foundation





  



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