Posts Tagged ‘subpoenas’

In Advance Magazine Publishers v. Does 1-5, No. 09-10257 (S.D.N.Y. Dec. 22, 2009) Conde Nast is seeking to identify the people who hacked into their computer system and republished pages from the December 2009 issue of GQ magazine on a blog hosted by Google’s Blogger Service. The complaint alleged a violation of the Computer Fraud and Abuse Act (CFAA) for the hacking, and copyright violation for the republishing without permission of copyrighted materials belonging to Conde Nast. The court agreed to issue a subpoena to discover the identity of the hackers and republishers because (1) Conde Nast had alleged sufficient facts to bring an action under both the CFAA and the Copyright Act, (2) the identity of the hackers could be overwritten if not discovered soon, and (3) Conde Nast has no other way of obtaining this information. If you were the Judge, what other conditions would you add before granting a subpoena to identify computer hackers? Would your answer be any different if this was just copyright infringement?

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In the case of Stone v. Paddock Publications, 09 L 5636 (Cook County, IL 2009), an Illinois court issued a subpoena to obtain the identity of an anonymous poster, but then indicated that the poster would be kept anonymous, for a while anyway. This case involves false and offensive postings made to and about a 15 year old boy on the internet. The mother on behalf of the boy filed the suit to obtain the identity of the poster. During arguments, the anonymous poster (hipcheck16) argued through his attorney that his identity should be protected as anonymous political speech under either the Illinois Anti-SLAPP statute or the First Amendment.  

The Illinois court, in citing the case of two Yale law students who were defamed on a website and were able to obtain the identity of the posters – Doe I v. Individuals, 561 F. Supp. 249 (D Conn. 2008) – ruled that the First Amendment does not protect posters’ identities from being discovered when they have engaged in speech which is not protected. The Judge in Stone adopted the 6-part test in Doe: 1. The defendant must be given notice of the subpoena and an opportunity to object, 2. The plaintiff must identify the offending post, 3. The plaintiff must have no other way to discover the identity of the defendant, 4. The subpoenaed information must be necessary to the case, 5. The poster must not have a right to anonymity, and 6. The plaintiff must make an adequate showing that the case has merit.

The Illinois court found that although the first five elements had been met, it could not go so far as to say that the plaintiff had made an adequate showing that the case had merit, because the case against the posted had not yet been filled. The court took the unusual route of obtaining hipcheck16’s identity, but ordering that it not be revealed except to the plaintiff, her attorney, and the process server until such time as the trail court could rule on the sixth element.

There have been an increasing number of lawsuits being brought against anonymous posters of comments on the internet. Although the courts throughout the states have varied widely in their reasoning for issuing or denying subpoenas, this Judge seems to be trying to balance the rights of the poster with the right of the plaintiff to bring an action for defamation. While some critics of these types of rulings have indicated that the plaintiff should not have to prove her case prior to discovering the identity of the defendant, others have argued that it is necessary to protect the right of free speech. Regardless, the First Amendment  does not give anyone the right to defame another.

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