Summer 2009 Bulletin

Subpoenas to Unmask Anonymous Internet Users Continue to Challenge News Media and Courts

News Media and Anonymous Web Site Commenters
News organizations in several states have fought to keep Web site users’ identities concealed from government officials and trial courts in criminal and civil matters.
On May 15, 2009, a judge in Illinois’ 3rd Judicial Circuit declined to quash a subpoena to The Alton Telegraph issued by law enforcement authorities investigating the murder of a child. The subpoena sought the names, addresses, and IP addresses of five individuals who had posted comments on a story detailing the arrest of a suspect. According to Judge Richard Tognarelli’s order, some of the comments accused the suspect of a history of child abuse and arson.
The Telegraph moved to quash the subpoena in September 2008, arguing that the Illinois reporter shield law, 735 Ill. Comp. Stat. 5/8-901 to 909, protects the identities of the commenters as “sources” of information. It argued that, “in the digital age,” receiving information via an anonymous online commenter “is no different from anonymous tips provided to newspaper reporters telephonically or in written form.” Moreover, the newspaper argued that law enforcement failed to meet the shield law’s requirement that “all other available sources of information have been exhausted and … disclosure of the information sought is essential to the protection of the public interest involved.”
Tognarelli disagreed with The Telegraph, however, ruling in Illinois v. Alton Telegraph, 08-MR-548 (Ill. Cir. Ct. Madison Co. May 15, 2009), that the five commenters were different from the traditional anonymous sources covered by the law. Tognarelli wrote that because the commenters had posted their comments after the article was published, they could not be considered “sources” under the Illinois shield law. “It is clear that the reporter did not use any information from the [commenters] in researching, investigating, or writing the article,” Tognarelli wrote. “Comments were … made between various [commenters], between themselves, without comment, input or discussion from the reporter. It would not appear that the [commenters] were ‘sources’ for the Telegraph news article.” 
Tognarelli ruled that the state had met its burden in showing it had exhausted “all other available sources of information,” writing that the state’s investigation had been “thorough and comprehensive,” and that no other alternatives apparently existed for learning about the suspect’s alleged history of child abuse.
In balancing The Telegraph’s interest in protecting the anonymity of its commenters and the state’s interest in “prosecuting someone who has allegedly murdered a child,” Tognarelli ruled that “It cannot be said that forcing The Telegraph to reveal what information it has about voluntary, unsolicited online commentators, in this case, will make the public unwilling to express their opinions or to provide information during the course of a reporter’s actual investigation, in future cases, nor does it deny the public the right to receive complete unfettered information in this and future instances.”  He upheld the subpoena for two of the five commenters, finding that the comments of the other three were not relevant enough to further the state’s interest in its investigation. Tognarelli was reluctant to broadly discuss whether the shield law should apply in other online contexts, however, saying to do so “is for the legislature, not this Court, to determine.”
The Illinois trial court decision was the first to find that a newspaper could not claim that a state shield law extended to the anonymous commenters on its Web site. Trial courts in Oregon, Montana, and Florida came to the opposite conclusion in fall 2008. (See “State Trial Courts Hold Shield Laws Protect Anonymous Reader Comments on Web Sites” in the Fall 2008 Silha Bulletin.)
Meanwhile, a ruling involving the identities of anonymous newspaper Web site commenters in a Texas murder trial went in favor of the Abilene Reporter-News.
According to the Reporter-News on June 19, defense lawyer David Thedford sought the identities of people who commented on the newspaper’s online stories about the murder victim and a teenage suspect, in order to exclude the commenters from the jury pool for the underlying criminal trial, Texas v. Martinez, No. 17042-B (Tex. Dist. Ct. Taylor Co. 2009).
“People have an agenda, and some want to get on a jury,” Thedford argued before District Court Judge K. Lee Hamilton in a June 19 hearing, according to the Reporter-News.
Ken Leggett, attorney for the newspaper, argued that the identity of the commenters is protected by the First Amendment and the new Texas shield law, Tex. Civ. Prac. & Rem. Code §§ 22.021-.027 and Tex. Code Crim. Proc. art. 38.11, which was passed by the state legislature and signed into law in May 2009.
According to the Reporter-News, Thedford argued that his client’s right to a fair trial should “trump” the news organization’s right to claim the statutory privilege. However,Hamilton agreed with Leggett, ruling that the law, which extends to “any confidential or nonconfidential unpublished information, document, or item obtained or prepared while acting as a journalist,” or the source of that information, protected the identities of anonymous commenters on the Reporter-News Web site.
In Nevada, the Las Vegas Review-Journal agreed to turn over information on two anonymous commenters after federal prosecutors narrowed a subpoena issued to the newspaper.
Review-Journal Editor Thomas Mitchell reported in a June 7 column that a May 26 Review-Journal story covering an ongoing federal tax evasion trial had drawn over 100 comments, many of which were severely critical of the trial’s prosecutor, Assistant U.S. Attorney J. Gregory Damm. The underlying tax evasion case, United States v. Kahre, No. 2:05-CR-121 (D. Nev. 2009) is before U.S. District Judge David Ezra.
Mitchell reported that the week after publishing the May 26 story, the Review-Journal received a federal grand jury subpoena signed by Damm, demanding every record pertaining to comments attached to the story, including “full name, date of birth, physical address, gender, ZIP code, password prompts, security questions, telephone numbers and other identifiers ... [including] the IP address.” Mitchell also reported that the subpoena warned, “You have no obligation of secrecy concerning this subpoena; however, any such disclosure could obstruct and impede an ongoing criminal investigation.”
In his June 7 column, Mitchell wrote that fighting the subpoena would be expensive and probably unsuccessful because there is no federal shield law, but the newspaper’s attorneys would work with the government to limit the scope of the subpoena.
On June 17, the Review-Journal reported that U.S. attorneys had agreed to limit the subpoena, focusing on two anonymous commenters whose comments “might be construed as threatening to jurors or prosecutors.” One of the comments called jury members “12 dummies” and said they “should be hung” if they found in favor of the government, and the other commenter wanted to bet “quatloos” – a form of money from the television show “Star Trek” – that one of the federal prosecutors would not reach his next birthday, the Review-Journal reported.
Mitchell said in the June 17 story that he was more satisfied with the narrower second subpoena, which was signed by Assistant U.S. Attorney Eric Johnson. “We want to be good citizens and do the proper thing,” Mitchell said, adding, “We will give them what we have, which frankly isn’t much, since most postings are anonymous.”
In his earlier column, Mitchell had said that it is the Review-Journal’s policy not to require users to register in order to comment on stories on its web site. “A person could use a fictitious name and e-mail address, and most do. We have no addresses or phone numbers,” Mitchell wrote.
The Review-Journal reported June 17 that the American Civil Liberties Union (ACLU) of Nevada would take up the case on behalf of the two commenters on the new subpoena, citing concerns over a chilling effect on future commenters. The ACLU is seeking a court order declaring the original subpoena unconstitutional, the Review-Journal reported, since the group does not consider the targeted comments “true threat[s],” which it said would show “a clear danger of imminent action.”

Unmasking Other Anonymous Web Users
The District of Columbia’s highest court released a decision on August 13 that established a new standard in the district for plaintiffs seeking to obtain the identities of anonymous Internet users.
In Solers, Inc. v. Doe, 2009 WL 2460862, 2009 D.C. App. LEXIS 342 (D.C. Aug. 13, 2009), a three-judge panel ruled that when a court is presented with a subpoena seeking the identity of an anonymous tort defendant, “the court should: (1) ensure that the plaintiff has adequately pleaded the elements of the ... claim, (2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served, (3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash, (4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and (5) determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.”
According to the judgment, the case arose from a complaint sent via the Web site of the Software & Information Industry Association (SIIA), a group that fights software piracy. The user submitted a complaint anonymously to the SIIA accusing Solers, a software development company, of using pirated computer programs. After an investigation, the SIIA declined to pursue a lawsuit against Solers, and Solers filed suit alleging defamation and “tortious interference with prospective advantageous business opportunities” against the anonymous tipster, called “John Doe” in the suit. Solers then issued a subpoena to the SIIA demanding that it reveal Doe’s name, but the SIAA filed a motion to quash, citing the First Amendment and its policy of source confidentiality.
In establishing its new test for unmasking anonymous Internet users, the D.C. Court of Appeals relied heavily on the Delaware Supreme Court case Doe v. Cahill, 884 A.2d 451 (Del. 2005) to help it settle the “tension between a speaker’s desire for anonymity and the right of the plaintiff to protect his reputation or property.” The final test, the court stated, would provide a certain minimal degree of protection for Internet users, yet still leave room for plaintiffs with a legitimate need to protect their reputation. For more on the Cahill case, see “Defamation News: John Doe No. 1 v. Patrick Cahill and Julia Cahill” in the Fall 2005 issue of the Silha Bulletin.
After instituting the new test, the court remanded the case to the district court level to determine whether Solers could establish that it had met each of the test’s five factors.
Meanwhile, in New York, model Liskula Cohen obtained a court order in a state trial court forcing Google to reveal the identity of a blogger who Cohen claimed defamed her by calling her a “skank” and a “ho” on an anonymously-authored Web site hosted by Google’s Blogger.com.
“The protection of the right to communicate anonymously must be balanced against the need to assure that those persons who choose to abuse the opportunities presented by this medium can be made to answer for such transgressions,” Judge Joan Madden wrote in her August 17 order granting Cohen’s petition, Cohen v. Google, No. 100012/09 (N.Y. Sup. Ct. Aug. 17, 2009).
According to an August 20 AP story, Cohen’s attorney Steven Wagner said Google complied on August 18 by releasing the blogger’s IP address and e-mail address. Google had initially refused Cohen’s request, saying that she needed to first get a court order.
The AP reported that the blogger was “an acquaintance” of Cohen’s, and that after discovering her identity, Cohen told the blogger she forgave her, although she has not ruled out pursuing a defamation lawsuit.
The blogger, Rosemary Port, told the New York Daily News on August 23 that she plans to sue Google for $15 million dollars for violating her “expectation of anonymity.”

– Patrick File
Silha Fellow and Bulletin Editor

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