IP: Setting the record straight -- Canadian Court order on

[Dave Farber <farber () cis upenn edu>]

Date: Sun, 12 Jul 1998 21:08:23 -0400
To: farber () cis upenn edu
From: David Akin <dakin () ham southam ca>
Subject: Re: Canadian Court order on anonymity


Here's what Dave Farber wrote on 7/11/98 AT 4:12 PM -0500
> Watch what you say online that is negative ESPECIALLY in Canada  djf


Hey folks - let's set the record straight.


I'm the reporter who's covering the story here in the grieved company's
hometown, Hamilton, Ontario.


The Globe and Mail story posted to this list was published on the same day
as similar stories in The Financial Post and my paper The Hamilton
Spectator.


Only my paper mentioned that all of the shenanigans in the Ontario court
would not have been possible without Yahoo's complicity.


Yahoo released IP numbers in response to a subpoena from a California
Superior Court (Santa Clara). Without those IP numbers the grieve compnay,
Philip Services Corp., would never have known which ISP doors to knock in.


The Ontario ISP that has released accounts associated with that IP traffic
was responding to court order, not a subpoena.


The order has also been issued against AOL and PSINet but the American head
offices of those firms got them a day later than the Canadian ISP (which
incidentally is a mom-and-pop shop with neither the legal resources nor
experience in such matters). Expect both those firms to respond - - likely
with the same info as the Canadian ISP - - Monday.


Philip petitioned an American judge in California for the court orders that
are now being reviewed by AOL and PSINet (and possibly other ISPs we're not
aware of.)


The whole thing stems from a defamation suit Philip Services filed June 4
in the California Court. It names 100 John Does as defendants. All the John
Does are stand-ins for the names of posters to the Yahoo Finance message
board.


That defamation suit, incidentally, first came to light Friday with
research by our paper - - thousands of kilometres away from Silicon Valley.


Electronic Frontier Foundation's head office is a few minutes drive from
this courthouse. Where are they on this issue?


An American court was the first to issue these orders and an American firm
- - Yahoo Inc. of Santa Clara - - was the first to roll over.


Here's some stories from the Saturday edition of The Hamilton Spectator:


Saturday 11 July 1998


Philip suing dozens


David Akin The Spectator


Philip Services Corp. has launched a sweeping lawsuit against as many as
100 people it says defamed company executives and leaked confidential
financial information.
Former alderman John Gallagher may be among the defendants in that suit,
which revolves around an Internet message board operated by Yahoo! Inc. of
Santa Clara, Calif.
"I'm not in a position to reply because I don't know anything about it,"
Gallagher said last night. "I haven't been put on notice. They haven't
served me with anything."
It's the latest revelation in a complicated cat-and-mouse game between
Philip and critics who have used the anonymity of cyberspace to fire
broadsides at the Hamilton-based firm.
The suit, filed June 4, also reveals that Philip believes that some of its
harshest critics may be either current or former employees and that those
individuals may have revealed confidential business or financial
information which influenced the price of Philip's stock.
The defendants' "conduct toward Philip has been oppressive and engaged in
with an intent to injure, vex, and harass Philip," the suit says.
Philip filed the suit in the Superior Court of Santa Clara County, Calif.
The case is in a California court because the owner of the forum in which
the alleged defamation took place has its corporate head office in Santa
Clara.
The suit alleges that several individuals, using pseudonyms or aliases,
posted messages on an Internet chat board operated by Yahoo! Inc.. that
defamed some Philip executives and revealed confidential financial or
operational information about the Hamilton-based company.
The suit names John Doe 1 through John Doe 100 as defendants. The term John
Doe or Jane Doe is frequently used by police and court officials as a
stand-in name for a person whose identity is not known or whose identity is
being protected by the court.
The Spectator learned of the existence of the lawsuit yesterday, after
Philip had used courts in Ontario and California to force Yahoo! and
several Internet service providers to reveal the identity of the John Does.
It was through that initiative that Philip learned Gallagher may be one of
those John Does. He confirmed Thursday that he did, indeed, post messages
to the Yahoo! site about Philip using several different aliases.
Philip vice-president Lynda Kuhn said yesterday that her company has not
yet decided on its next course of action.
Internet and legal experts suggested that if Philip wanted to sue
Gallagher, its next step would be to apply for a court order to seize
Gallagher's computer equipment as possible evidence in any court proceeding.


AND


Saturday 11 July 1998


Philip vs. the John Does
Firm has won right to peek behind the veil of Internet anonymity


David Akin The Spectator


As the price of Philip Services Corp.'s stock began to slide earlier this
year, the knives came out.
Philip, once cheered by analysts and investors alike for the aggressive
corporate strategies which drove its share price up to $28 last fall, had
become, as early as February, the subject of harsh criticism.
Nowhere were the critics more vicious than in an obscure little corner of
cyberspace ostensibly designated as a home for Philip investors to discuss
company strategy.
By the middle of April, that corner of cyberspace, hosted by Yahoo! Inc. of
Santa Clara, Calif., had become the launching pad for personal attacks on
Philip executives, scurrilous rumours about financial and operational
mismanagement, and a plethora of taunts and insults among participants.
Philip had experienced criticism before and wasn't shy about aggressively
defending itself.
Newspaper reports that cast the company in an unfavourable light prompted a
sharply worded letter from Philip CEO Felix Pardo. Former Philip employee
Michael Hilson is fighting to get the courts to lift an injunction Philip
requested to silence criticisms of the firm that he made in 1995.
But in this corner of cyberspace, Philip's critics could fire away with
seeming impunity because the Yahoo! message board that contained the
discussion did not require its participants to identify themselves.
Critics hid themselves behind colourful aliases like ScrapGal, Skeptic666
and Wentworth_Guy.
In a matter of weeks -- as Philip's stock drifted under $10, then under $7
and finally under $5 -- some of the posts to the Yahoo! message board,
Philip now says, descended into threats and sexual harassment.
> From a corporate perspective, Philip was also convinced that at least one
of the anonymous critics at the Yahoo site was an employee or former
employee.
Confidential information was allegedly appearing on the message board about
Philip's finances or operations that no one but company officials were
privy to, and it was eerily accurate in predicting events that had not yet
happened. The disclosure of that confidential information, Philip claims,
was starting to hurt Philip's bottom line.
Finally, on June 4, Philip had had enough.
It filed a lawsuit in Santa Clara, Calif. -- home of Yahoo! Inc.'s
corporate head office -- against the anonymous posters for defamation and
breach of fiduciary duty. In the suit, it could only name John Does as
defendants, but warned that as soon as it learned the identity of the John
Does, it would hold the real culprits accountable.
Earlier this week, Philip won the right to peek behind the veil of
anonymity. The company used courts in both California and Ontario to force
Yahoo! Inc. and several Internet service providers to reveal the identities
of those who wrote and posted the offending Internet messages.
Internet service providers Weslink Datalink Corp. of Hamilton, PSINet Inc.
of Herndon, Va., America Online Inc. of Dulles, Va. and possibly other ISPs
were served court orders to hand over information to Philip that would
identify the owners of e-mail Internet addresses associated with the
pseudonyms used on Yahoo!.
Weslink complied with the court order Thursday, identifying former Hamilton
politician John Gallagher as the holder of an Internet account used to post
some of the messages to the Yahoo site.
America Online's and PSINet's lawyers were reviewing the court order and
had not yet complied as of late yesterday afternoon.
Yahoo! earlier complied with a subpoena issued by the California Superior
Court to provide Philip with details that helped identify the anonymous
critics, including Gallagher.
Regardless of what Philip does next -- and company officials have not said
what, if any, its next legal move will be -- the situation has the Internet
industry re-examining its ideas about cyberspace privacy rights.
"For PSINet, for the subscribers, for the companies involved, this is all
uncharted territory," said Nadir Desai, CEO of PSINet's Canadian subsidiary.
"What we want to do is recognize that this becomes part of the wonderful
process of understanding and determining how the laws encompass this new
technology.


PERSONAL INFORMATION


"We need to work that out through our court system and we need to work it
out within the confines of the rights we're all guaranteed."
David Jones, a McMaster University computer science professor and president
of Electronic Frontier Canada, said that in turning over personal
information about users, companies like Yahoo and Weslink are following
perfectly rational business strategies.
After all, Jones said, these firms have no legal obligation to protect
someone's privacy and their privacy policies state clearly that they will
comply with any court orders.
Still, Jones and groups like Electronic Frontier Canada, which advocate for
the extension of charter rights into cyberspace, are hoping for more
resistance from Internet service providers and online content companies
like Desai's.
Jones hopes that if an Internet service provider fights a court order like
that issued this week, jurists will be forced to more sharply define the
kinds of circumstances under which a company can be forced to divulge
personal information.
"Just because you got a court order doesn't mean you have to comply with
it. That's one of my concerns," Jones said.
"Courts don't have much experience with these sorts of things."
David Akin                         VOX: 905/526-3327
Technology Reporter                FAX: 905/526-1395
The Hamilton Spectator          dakin () ham southam ca
44 Frid Street      http://www.hamiltonspectator.com
      Hamilton * Ontario * CANADA * L8N 3G3