Another anonymity case -- and the seamy side of an "anonymity-protective" ISP

[David Farber <dave () farber net>]

Begin forwarded message:

From: Paul Levy <plevy () citizen org>
Date: November 21, 2006 6:30:58 PM EST
To: dave () farber net
Subject: Another anonymity case -- and the seamy side of an  
"anonymity-protective" ISP

I want to call your attention to a motion filed by my colleagues Greg  
Beck, seeking to quash a particularly abusive attempt to identify  
the  operator of a web site that hints at criticisms of a  
controversial Massachusetts businessman.  www.paulmcmann.com.

Greg's client was the subject of a lawsuit and a request for issuance  
of a subpoena from the federal court in Boston (where the plaintiff  
businessman lives).  Without even waiting for a response from the  
Doe, the district judge quashed the subpoena both because there was  
an insufficient showing of the basis for federal jurisdiction, and  
because the plaintiff had made no showing of facts establishing that  
the plaintiff had a valid lawsuit.

The plaintiff then found a lawyer in Arizona to file a new lawsuit,  
repeating the allegations in the Massachusetts case, but not  
providing any evidence of wrongdoing and not telling the Arizona  
court either than the plaintiff was from Massachusetts not Arizona,  
or that the Massachusetts judge had already refused to issue a  
subpoena.  The Arizona court just issued the subpoena, and Greg has  
now moved to quash as described in the attached press release; there  
is a link to the brief at the end.

There is another aspect to the story that is almost more disturbing  
than the abusive subpoenas.  The Doe obtained his domain name from  
Domains by Proxy, which promotes itself as a way to register a domain  
name without providing identifying contact information.  http:// 
www.domainsbyproxy.com/  But when DbP gave the Doe notice of the  
service of the Arizona subpoena, it gave him THREE business days to  
file  a motion to quash -- much less time than the two weeks or more  
on which most other ISP's insist, even though DbP's supposed business  
model is the protection of anonymity.  And when Greg sought DbP's  
cooperation by, for example, providing a copy of the subpoena and  
allowing a fair extension, it proved difficult to get the company's  
attention and the little assistance that Greg was able to wring out  
of the company was grudging, as if protection of its own customers  
anonymity rights was too much of a bother.  At one point, the ISP's  
general counsel told Greg, "Well, he only sent me $3.99 and I've  
already spent a lot more than that talking to you."

So the lesson seems to be, with respect to Domains by Proxy, caveat  
emptor.  And it is cases like these the show the need for notice  
procedures and showings of the basis for discovery  BEFORE the  
subpoena issues, because not all ISP's provide enough protection for  
their clients' anonymity.

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation

> > > Robert Yule 11/21/2006 2:08 PM >>>
PUBLIC CITIZEN PRESS RELEASE

For Immediate Release:               Contact: Greg Beck (202) 588-7713
Nov. 21, 2006                                              Robert  
Yule (202) 588-7703

Public Citizen Files Motion to Protect Identity of Anonymous Web Site  
Operator

Massachusetts Real Estate Developer Should Not Be Allowed to Unmask  
Online Critic in Arizona Court

WASHINGTON, D.C. - An Arizona court should not allow a target of  
online criticism to use a lawsuit to obtain the identity of his  
Internet critic when an almost identical lawsuit has already been  
dismissed by another court, according to a motion filed late  
yesterday by Public Citizen. The motion asks the Superior Court of  
Arizona in Maricopa County to quash the subpoena of a Massachusetts  
real estate developer against the operator of a critical Web site and  
to dismiss charges violating the site operator's First Amendment rights.

The case, filed in the Superior Court of Arizona in Maricopa County,  
is the second attempt by plaintiff Paul McMann to obtain a subpoena  
to learn the identity of defendant John Doe, an anonymous Web critic  
who maintains a site devoted to McMann at http://www.paulmcmann.com/.  
Doe created the site after a negative business transaction with  
McMann and invited others to share similar experiences by posting on  
a message board. The site includes a warning about doing business  
with McMann and a list of businesses registered in his name.

"This case demonstrates how fragile our privacy on the Internet  
really is," said Greg Beck, an attorney for Public Citizen Litigation  
Group. "Anyone who files a meritless complaint can get a subpoena  
from a court to reveal your identity, even if the complaint has  
already been rejected by another court."

The U.S. District Court for the District of Massachusetts in October  
dismissed McMann's first attempt to learn Doe's identity, finding  
that he did not have any legitimate claim for defamation, invasion of  
privacy or copyright infringement. McMann filed the new complaint in  
Arizona six days later, even though the anonymous critic has no  
connection with the state. McMann omitted from his complaint all  
mention of the prior lawsuit.

Seeking to unveil Doe's identity, McMann sent a subpoena to GoDaddy  
and Domains by Proxy, the companies responsible for registering and  
hosting the Web site. McMann and his counsel made no attempt to  
notify Doe of the case against him, and Doe did not learn about the  
pending subpoena until GoDaddy contacted him Nov. 10 by email.

Even though Domains by Proxy is designed to protect the privacy of  
Web site owners, its parent company GoDaddy told Doe he had only  
three business days to file a motion to quash the subpoena or it  
would release his identifying information. This required Doe to find  
and hire a lawyer in Arizona, prepare the motion and notify GoDaddy  
within that period of time. GoDaddy also told Doe that it would  
charge his account for releasing the information and even refused to  
provide Doe with a copy of the subpoena he was objecting to.

On behalf of Doe, Public Citizen negotiated an extension from GoDaddy  
until Nov. 21 and filed the motion to quash the subpoena. Phoenix  
attorney Louis Hoffman of Hoffman & Zur is local counsel for Doe.

To read Public Citizen's motion, visit http://www.citizen.org/ 
documents/mcmannmemo.pdf.

Public Citizen has a record of defending the First Amendment rights  
of Internet users. To learn more, visit http://www.citizen.org/ 
litigation/briefs/IntFreeSpch/.

###

Public Citizen is a national, nonprofit consumer advocacy  
organization based in Washington, D.C. For more information, please  
see http://www.citizen.org.



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