Court backs right to free speech on Web

U.S. District Judge Thomas Zilly struck down a subpoena that would have required Web service InfoSpace to disclose the identity of nearly two-dozen people who posted anonymous comments on message boards.

The decision will make it harder to obtain the identities of people who post messages on the Net unless they are directly named in a lawsuit or are essential to a claim.

The ruling comes at a time when it's increasingly common for companies to try to silence critics on Internet message boards by obtaining the real identity from the Net service, such as Yahoo, that hosted the chat board. Lawsuits implicating such anonymous online posters, or John Does, have been on the rise, and the debate has turned into a flash point for civil libertarians.

While Thursday's decision limits the types of people who can have their identity revealed, it does not completely end such disclosure.

"The issue becomes: What is that standard under which someone's anonymity should be breached?" said Lauren Gelman, attorney at the Electronic Frontier Foundation (EFF). "We want the courts to step in to say, 'If you want to unmask an anonymous poster, you need to show that this person's identity is central to your claim.' That's what Judge Zilly did."

So far, the courts have been split over whether companies running the largest message boards--including America Online and Yahoo--must unmask the identities of anonymous posters. Judges have sided with free-speech advocates in some cases and the companies seeking the identities in others.

In this case, 2TheMart.com was seeking a subpoena that would reveal the identities of several online posters. At the time, 2TheMart.com was defending itself against a class-action lawsuit alleging the company engaged in securities fraud.

2TheMart.com asked that InfoSpace be required to turn over the identities of 23 posters who used pseudonyms on one of its investor-related message boards. Such requests are fairly common, but in this case the 23 people weren't being sued, nor did they have a central role in the case.

The proper Does
"It's a huge fishing expedition," said Gelman, who represented the defendants. "Our Does weren't being sued. They weren't accused of being wrongdoers. They were just people who posted on a message board."

2TheMart.com hypothesized that people posting on the message boards were short-selling its stock, meaning that they made investments based on the idea that the stock would decrease in value. Proving this theory, 2TheMart.com believed, could help the company defend itself against the securities-fraud suit.

"We’re adamant about protecting the privacy interest of our subscribers. However, under our privacy policy we do reserve the right to access and disclose individuals' information in order to comply with the law," said Adam Whinston, an InfoSpace spokesman.

A representative of 2TheMart.com could not be immediately reached for comment.

Whether 2TheMart.com had access to the identities was clouded by the fact that there are no federal laws protecting anonymous speech online. The only law connected to this issue is the Electronic Communications Act, which sets out the standards for the government to request a person's identity from an Internet service.

Civil libertarians would like to see legislation enacted to protect people's anonymity online or the establishment of court standards restricting access to such information.

Rob Courtney, policy analyst at the Center for Democracy and Technology, said that courts have granted a lot of authority to plaintiffs at the expense of people's privacy. This is largely because of a lack of new controls over what kind of information can be sought during the discovery process of a legal case.

"In the online world, we need to have an updated view about what privacy means, what the expectation of privacy means," Courtney said.

"This points to the need for legislation that secures rights to anonymous speech on the Internet."

The case also highlights a growing tendency for failed Internet companies, under attack from investors, to blame their critics on message boards for their woes. Many such companies are fighting legal problems of their own and in the process looking for a scapegoat.

As these kinds of cases become more prevalent, groups such as the American Civil Liberties Union (ACLU), the Electronic Privacy Information Center and the EFF join the fight to preserve online anonymity.

Earlier this year, the ACLU argued along with free-speech group the Liberty Project that a court should not release the names of an ambulance company's online critics citing free-speech protections.

In addition, AOL became the first message-board company to use a legal filing to criticize attempts to force it to squeal on posters. In a brief filed in a separate John Doe case, AOL argued that such lawsuits threaten free speech on the Web.