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Corporate Case in Ohio Raises Questions
on Internet Anonymity
By JOHN SCHWARTZ
John Hritz wants to get to know Jane Doe.
Jane Doe is the pseudonym for an Internet
user who posted messages critical of Mr. Hritz
and the company he serves as a general
counsel, AK Steel of Middletown, Ohio.
Like many publicly traded companies, AK
Steel, which makes products for cars,
appliances and other uses, is the subject of a
message board on Yahoo. And as with many
online forums, the discussion there tends
toward the bareknuckled. In one message,
Jane Doe wrote that Mr. Hritz "will litigate the
time of day."
In fact, Mr. Hritz has gone to court over that
comment and others, claiming that the Doe
postings are "threatening, libelous and
disparaging." But even before actually filing a
lawsuit, Mr. Hritz has asked Ohio's state
courts to unmask Jane Doe's identity. Civil liberties
groups are banding together to try to keep the identity a secret.
From the content of the messages, it is evident that
Jane Doe works for AK Steel. And Jane Doe's lawyers
contend that Mr. Hritz's actual intention is to find and
punish an errant employee.
Lawsuits to pierce the veil of anonymity online are
increasingly common
in the Internet age. But two advocacy groups involved in workplace and
online issues, Public Citizen and the Electronic Frontier Foundation,
argue that the AK Steel request goes too far, giving companies the
power to silence corporate critics whether or not a case will ever be
filed.
Some corporations and their advocates counter that the Internet allows
unfair "online assault" that can damage reputations. Bruce D. Fischman, a
Miami lawyer, suggested in a recent presentation that maligned
companies "contact counsel familiar with Internet defamation and
securities issues to advise you on all legal remedies that may be available
to unmask the anonymous poster, and pursue a suit for injunctive relief
and damages."
Mr. Fischman gave a presentation at Harvard Law School yesterday
titled, "John and Jane Doe: Freedom Fighters or Verbal Terrorists?"
The Supreme Court has declared that the First Amendment protects the
right to speak anonymously as part of the guarantee of free speech; the
authors of the Federalist Papers, after all, wrote as Publius, not
Alexander Hamilton, James Madison and John Jay. In court filings
fighting the request to unmask Jane Doe, the civil liberties groups argue
that at the very moment the power of the Internet is helping to create the
biggest marketplace of ideas the world has ever seen, powerful
companies will be able to squelch online speech by using the courts as a
"private detective service" to unmask critics.
"It's a David and Goliath story," said Lauren Gelman, director of public
policy for the Electronic Frontier Foundation, an online civil liberties
organization based in California. Ms. Gelman warned of a chilling effect
on online speech: If the average Internet user "gets a subpoena like this in
the mail, he's not going to go to the big law firm around the corner and
say `defend me,' " she said. "He's going to stop talking. And if he stops
talking, they've won."
Paul Allen Levy, a lawyer for Public Citizen, concurred. "It's hard to
believe that this is a case about defamation," he said. "I think
this is a case about intimidation."
Through his lawyer, David C. Horn, Mr. Hritz declined to comment on
the matter.
Courts have not yet laid out clear rules governing anonymity online, said
Robert Corn-Revere, a Washington lawyer who is representing Jane
Doe in the Virginia courts. "There's no real body of law out there on this,"
Mr. Corn-Revere said.
On Friday, in a similar "John Doe" case that produced a lawsuit, a
Florida appeals court let stand a lower-court ruling that required Yahoo
and America Online to divulge the identity of people who posted
messages critical of Eric Hvide, the former chief executive of Hvide
Marine Inc. Mr. Hvide claimed in court that the comments had caused
him to lose his job.
"We're still exploring what the possible options are," said Lyrissa Barnett
Lidsky, a professor at the University of Florida who represented three of
the defendants on behalf of the American Civil Liberties Union. "Once
the names are uncovered," she said, the right to speak anonymously is
"irrevocably lost."
In another recent case, the Thomas & Betts Corporation of Tennessee
tried to uncover the name of an employee who had posted anonymous
messages on a Yahoo message board, but dropped the suit after Public
Citizen intervened.
In Mr. Hritz's case, lawyers tried to learn Jane Doe's identity by using an
Ohio law that allows people contemplating a lawsuit to begin the process
of discovery, or legal investigation, before the suit is filed. The Ohio
court issued a subpoena, which the attorneys sent to Yahoo. The online
service said it did not know the identity of the commentator, but was able to
show that the postings were made from an AOL account.
When the subpoena was then sent to America Online, the company
followed its own procedures for such cases, sending a letter to the
potential defendant by overnight mail that explained that the name would
be disclosed in 14 days if he or she did not raise a legal objection.
The number of requests for the identities of John and Jane Does is
growing, said Rich D'Amato, a spokesman for America Online. "We do
receive hundreds of these subpoenas in a given year," Mr. D'Amato said,
adding that the rise is "commensurate with the spread of the Internet in
general as a business tool and as a communications tool."
The potential who asked that Jane Doe's actual name and
sex be withheld as a condition for being said that upon
receiving the America Online letter, "I was scared to death." After finding
Lawrence Lessig, a Stanford law professor, on the Internet, Jane Doe
sent the information to him. Mr. Lessig in turn passed the case along to
the Electronic Frontier Foundation, on whose board he serves.
In an e-mail interview, Mr. Lessig wrote: "If someone charges libel, then
the anonymity of a poster should be preserved until the libel is proved.
Otherwise, the subpoena power can be used to silence anonymous,
critical speech."
Jane Doe, who has been studying First Amendment law recently, said: "I
don't want to be a martyr. But this is an issue that's bigger than me. It's
about how they're going to shape law with the Internet. That's what the
Internet is all about: the free flow of information. That's what I thought,
anyway. I'm finding out a little different, right now."
18 responses total.
So this is now the depository of other people's copyrighted work? Pretty sad.
Yeah. Usenet is filling up. ;}
What is the potential danger to grex, which, except in the case of member, *cannot* determine who its users are, if "the courts" determine that such renegade organizations cannot be allowed to operate? I.e. how likely is it that "they" could shut grex down?
Now linked to cyberpunk, your conf of social issues in cyberspace. j cyber at the next Ok: prompt.
Hmm...I didn't get the impression that that's what this ruling is about. Since Yahoo doesn't *know* the user's name, no one's trying to force them to reveal it. The only reason they're asking AOL to is that AOL admits to knowing it. So I don't see any particular danger to Grex. I do think this could set a bad precident, though. It seems odd that rights you have normally wouldn't apply just because you choose to communicate electronically.
Someone entered #0 on mnet, too. This must be spreading across geekdom like wildfire.
I believe it appeared on Slashdot, which is a pretty good start towards "spreading across Geekdom like wildfire." Abuse of legal process can be a pretty serious problem. #0 doesn't give nearly enough detail about what's going on to allow us to judge, but there already have been a number of cases where companies or individuals have used such means to silence their critics. It's particularly easy to do when the critic is criticising via the Internet, as most ISPs don't want to get caught in the middle..
http://www.anonimizer.com (If you trust them...)
Anonymous reposting services have been forced to divulge info in the past. You can't trust any of them to be truely secure.
One of my favorite pen names was used by a writer for the Lansing Star: Sue D'Nim.
Let me restate: What if nastyguy@cyberspace.org sends e-mails or makes posts or builds web pages that someone finds objectionable, illegal, worthy of civil remedies. That someone, perhaps with a court order in hand, says to grex, "Reveal the identity of this nastyguy user of yours!" Grex says, "We cannot, as we are largely a system of anonymous users." So that someone looks to make trouble for grex, trying to get some court somewhere to have grex shut down, as it is providing a service from which anonymous nastyguys can wreak havoc with impunity. And perhaps grex is tacitly encouraging such behavior. What is the risk to grex, if any, if this scenario were to unfold?
Well, that's basically the situation it sounds like Yahoo was in in this case, and no one went after them.
A court can't order anybody to release any information they don't have. As long as information is either not collected, or destroyed in the regular course of business, it's generally ok not to have information. Where legal problems come in is when information is destroyed in order to keep it from being able to be produced in response to a court order, which as far as I know has never happened on Grex. I would assume that if somebody got a court order to get Grex to turn over some information, if Grex had the information it would either get turned over or the order would be appealed. I don't think we would flat out refuse.
So lets overwrite wtmp hourly just to make sure.
Why? Are we looking to harbor folks looking for a safe base of operations for illegal assaults? I thought we were kind of fond of doing what we needed to do to be good net citizens. We should be very upfront and remind folks from time to time that if presented with court orders Grex will cooperate fully.
Hmm mary depends on how you define illegal. In this age of decreasing constitutional rights I would hope the Grex would take a pro anonymous freespeech stance based on ethics rather than what is legalThere re laws pending for example that would make it illegal to provide any information that be construed as pro drug even in the context of honest debate. If those laws pass do we want to be in the postion of enforcing them. I would also remind you that the original Federalist papers were written by anonymous authors such as publis. I would hope that Grex sees anonymous soeech as anabsolute political right regardless of the shifting sands of law making.
I have no problem with Grex allowing anonymous access, in fact, it is one of the features I most admire about this place. But to go the extra step and change how information is stored here simply to make it harder to track where it came from is to solicit troublemakers. In the event of a court order I don't expect anyone on our Board to do anything but comply with the the order. We should discuss what happened, make sure everyone is aware there are no guarantees of privacy under such actions, write our congressfolk, collectively jump up and down, wish for the old days of the "Old West" internet, and so on. But to ask our volunteer Board members to put themselves at risk of legal liability is wrong.
> When the subpoena was then sent to America Online, the company > followed its own procedures for such cases, sending a letter to the > potential defendant by overnight mail that explained that the name > would be disclosed in 14 days if he or she did not raise a legal > objection. > I really like AOL's solution here. I much prefer it to what seems to be Grex's policy. It seems that using AOL's approach would also reduce the legal liability of Cyberspace Communication, Inc. This assumes, of course, that Grex has any idea about the identity of the defendant.
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