Unmasking Anonymous PostersA new legal trend has privacy advocates up in arms: Attorneys are using subpoenas to unmask the identities of anonymous posters to online discussion forums. And the people whose identities are at stake rarely have the chance to fight back.
Anonymous posters can seek to quash the subpoena and preserve their anonymity, said David Sobel, general counsel for the Electronic Privacy Information Center. But first, they have to have notice that the subpoena has been served.
See also: Not-So-Privileged Info
Without notice, “there’s no one in the picture that’s ready to challenge the subpoena and bring it before a judge,” he said.
Since subpoenas in civil lawsuits typically do not require a judge’s stamp of approval, Sobel is concerned that individuals and companies are filing bogus lawsuits just to peel back the veil on a user’s alias.
“Anyone can file a lawsuit,” Sobel said. “You get a lawyer. You file a lawsuit against John Doe. And suddenly you have the authority to issue a subpoena.”
Under their terms of service, many forum operators and ISPs promise not to divulge their users’ personal information unless requested by a subpoena or court proceeding, Sobel said. But not all forum operators provide notice when a subpoena has been served.
Although it’s not written into their terms of service agreements, both America Online and Microsoft’s MSN let users know about pending subpoenas, Sobel said. “At least the subscriber has a fighting chance. At least they know what’s going on.”
Other forum operators — notably Yahoo — don’t provide user notice. That’s raised the ire of privacy advocates like Sobel and prompted users to erect a discussion group about the topic in one of Yahoo’s forums.
“When people start to get the awareness that Yahoo is doing nothing to protect their privacy, that’s going to start affecting their traffic,” Sobel said.
Les French moderates a Yahoo discussion board for “Anonymous Yahoo message posters who are being sued.” French started the forum after a former employer used a subpoena to reveal the identities behind his and other users’ anonymous posts.
“They went down to court, filed a lawsuit, and subpoenaed Yahoo. They didn’t send any notice to their users,” French said.
“In my case, Yahoo provided them information which enabled [the company] to trace me back to Compuserve. And Compuserve, without notifying me, just turned over all the information in my account, including my credit card numbers. The only thing they didn’t get was the password to my account.”
Yahoo could not be reached for comment. But an attorney for the company who brought suit against French said that the company is well within its rights to unmask anonymous posters.
French and the other targets of the suit “essentially mixed fact with fiction” when describing the company online, said Stephan Pearson, assistant general counsel for Itex Corporation. Portland, Oregon-based Itex manages the records of bartering transactions between companies.
“We made the decision to unmask the identities of people who we thought were making defamatory statements about Itex Corporation,” Pearson said.
French said that Itex has a different motivation: silencing criticism of the company’s many business foibles. He said Itex has been beset by difficulties, including shifts in leadership, an ongoing Securities and Exchange Commission investigation, and being de-listed from the Nasdaq stock exchange for failing to file an annual report in 1998.
“I believe the reason Itex filed the suit was to chill speech — free speech — there on Yahoo’s boards,” French said, adding that financial discussion boards are one way to keep companies honest, and remind the board of directors that investors are watching their every action.
“Our action is a defamation-of-business kind of action and defamation has never been protected speech,” he said. Some defendants named in the suit after they were unmasked were dropped from it when it was determined that their comments didn’t harm the company in an illegal way, he added.
Regardless of the outcome of French and Itex’s suit, privacy experts are worried the trend will only escalate without additional protections for consumers.
How can TrustE grant Yahoo a privacy seal when the company coughs up personal information without providing notice of a subpoena to users, Sobel asked.
“It’s not part of our program to require that they do put the user on notice of a subpoena,” said Paola Benassi, TrustE spokeswoman. “If it becomes an issue, we’ll definitely see what makes the most sense.”
Privacy advocates remain concerned.
“I think the word is rapidly spreading in the legal community that this is a great way to get information,” said Sobel. “I think it is only matter of time before it becomes the norm in divorce cases — the possibilities are endless.”