A Doe subpoena is a
subpoena
A subpoena (; also subpœna, supenna or subpena) or witness summons is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of ...
that seeks the identity of an unknown
defendant to a
lawsuit. Most jurisdictions permit a
plaintiff
A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of t ...
who does not yet know a defendant's identity to file suit against
John Doe
John Doe (male) and Jane Doe (female) are multiple-use placeholder names that are used when the true name of a person is unknown or is being intentionally concealed. In the context of law enforcement in the United States, such names are often ...
and then use the tools of the
discovery
Discovery may refer to:
* Discovery (observation), observing or finding something unknown
* Discovery (fiction), a character's learning something unknown
* Discovery (law), a process in courts of law relating to evidence
Discovery, The Discover ...
process to seek the defendant's true name. A Doe subpoena is often served on an
online service provider
An online service provider (OSP) can, for example, be an Internet service provider, an email provider, a news provider (press), an entertainment provider (music, movies), a search engine, an e-commerce site, an online banking site, a health site, ...
or
ISP
An Internet service provider (ISP) is an organization that provides services for accessing, using, or participating in the Internet. ISPs can be organized in various forms, such as commercial, community-owned, non-profit, or otherwise private ...
for the purpose of identifying the author of an
anonymous post
An anonymous post, is an entry on a textboard, anonymous bulletin board system, or other discussion forums like Internet forum, without a screen name or more commonly by using a non-identifiable pseudonym.
Some online forums such as Slashdot do n ...
.
Legal process
Unmasking an anonymous online poster is a two-step process. First, the plaintiff must issue a subpoena to the
hosting website requesting the
IP address
An Internet Protocol address (IP address) is a numerical label such as that is connected to a computer network that uses the Internet Protocol for communication.. Updated by . An IP address serves two main functions: network interface ident ...
of the poster. Most websites collect and temporarily store the IP addresses of visitors in a web
server log
In computing, logging is the act of keeping a log of events that occur in a computer system, such as problems, errors or just information on current operations. These events may occur in the operating system or in other software. A message or l ...
, although no U.S. law requires that they retain this information for any particular length of time.
If the website provides the poster's IP address, the plaintiff must then subpoena the
ISP
An Internet service provider (ISP) is an organization that provides services for accessing, using, or participating in the Internet. ISPs can be organized in various forms, such as commercial, community-owned, non-profit, or otherwise private ...
that owns the address. This second subpoena requests the contact information associated with the account of the computer to which the IP address was assigned at the time the post was made.
Courts do not require the target of a subpoena to provide
notice
Notice is the legal concept describing a requirement that a party be aware of legal process affecting their rights, obligations or duties. There are several types of notice: public notice (or legal notice), actual notice, constructive notice Se ...
to the person whose identity is sought. The hosting website is unlikely to notify the defendant, as it generally will not have access to contact information; subpoenas for IP addresses are therefore seldom subjected to legal challenge. The ISP, however, may be required by law to notify its subscriber before revealing any
personally identifiable information in connection with a subpoena.
A defendant who does receive notice may file a motion to quash, which asks the court to block the subpoena and prevent the ISP from complying. ISPs may also challenge Doe subpoenas on their customers' behalf, but they are not required to do so.
Legal standards
No uniform standard exists in the United States for determining the circumstances under which an anonymous online speaker may be unmasked. The federal and state courts that have considered the issue have applied a variety of tests.
Summary judgment standard
This standard requires an ISP to divulge the identity of an anonymous poster if the plaintiff's case would be able to withstand a motion for
summary judgment
In law, a summary judgment (also judgment as a matter of law or summary disposition) is a judgment entered by a court for one party and against another party summarily, i.e., without a full trial. Summary judgments may be issued on the merits of ...
. This means that the plaintiff must "make a sufficient showing on
veryessential element of its case with respect to which it has the burden of proof."
The lead case applying the summary judgment standard is ''Doe v. Cahill'', in which a city council member sued an anonymous poster for two allegedly
defamatory
Defamation is the act of communicating to a third party false statements about a person, place or thing that results in damage to its reputation. It can be spoken (slander) or written (libel). It constitutes a tort or a crime. The legal defini ...
blog
A blog (a truncation of "weblog") is a discussion or informational website published on the World Wide Web consisting of discrete, often informal diary-style text entries (posts). Posts are typically displayed in reverse chronological order s ...
comments. The
Delaware Supreme Court
The Delaware Supreme Court is the sole appellate court in the United States state of Delaware. Because Delaware is a popular haven for corporations, the Court has developed a worldwide reputation as a respected source of corporate law decision ...
held that the plaintiff had failed to demonstrate that the comments were "capable of a defamatory meaning," an essential element of any defamation claim. As a result, the plaintiff was not entitled to discovery of the Doe defendant's identity.
Other courts have applied a "
prima facie showing" test, which functions like the summary judgment test but avoids the "potentially confusing" attachment of a procedural label, since the standards governing such motions may differ depending on the
jurisdiction
Jurisdiction (from Latin 'law' + 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, areas of jurisdiction apply to local, state, and federal levels.
J ...
. In ''Krinsky v. Doe 6'', the
California Court of Appeals
The California Courts of Appeal are the state intermediate appellate courts in the U.S. state of California. The state is geographically divided along county lines into six appellate districts. applied the prima facie showing test in the
libel context, holding that "
ere it is clear to the court that discovery of the defendant's identity is necessary to pursue the plaintiff's claim, the court may refuse to quash a third-party subpoena if the plaintiff succeeds in setting forth evidence that a libelous statement has been made."
The prima facie standard was also favored by a
New York state district court in ''
Sony Music Entertainment
Sony Music Entertainment (SME), also known as simply Sony Music, is an American multinational music company. Being owned by the parent conglomerate Sony Group Corporation, it is part of the Sony Music Group, which is owned by Sony Entertainmen ...
Inc. v. Does''. The court first found that the Doe defendants, who had used a
peer-to-peer
Peer-to-peer (P2P) computing or networking is a distributed application architecture that partitions tasks or workloads between peers. Peers are equally privileged, equipotent participants in the network. They are said to form a peer-to-peer ...
network to download
copyrighted
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, education ...
music files, warranted a lesser degree of
First Amendment
First or 1st is the ordinal form of the number one (#1).
First or 1st may also refer to:
*World record, specifically the first instance of a particular achievement
Arts and media Music
* 1$T, American rapper, singer-songwriter, DJ, and reco ...
protection than speakers who engaged in "true expression" intended "to communicate a thought or convey an idea." It then held that disclosure of the Doe defendants' identities was warranted based on a consideration of: (1) the plaintiff's ability to establish a prima facie claim; (2) the specificity of the plaintiff's discovery request; (3) the availability of alternative means to obtain the subpoenaed information; (4) the central need for discovery to advance the plaintiff's claim; and (5) the defendants' expectation of
privacy.
Summary judgment standard followed by balancing
This test provides a higher level of protection to anonymous online speakers, in that it requires a court to first apply the summary judgment standard of ''Doe v. Cahill'' and then, if the plaintiff is able to meet its burden, to balance the strength of the plaintiff's prima facie case against the poster's interest in remaining anonymous.
A
New Jersey appellate court applied this hybrid test in ''
Dendrite International, Inc. v. Doe No. 3
''Dendrite International, Inc. v. Doe No. 3'', 342 N.J. Super. 134, 775 A.2d 756 (App. Div. 2001), is a New Jersey Superior Court case in which Dendrite International, Inc., a purveyor of computer software used in the pharmaceutical industry, br ...
''. The court set forth five guidelines for judges to follow in deciding whether to compel disclosure of an anonymous poster's identity: (1) the plaintiff must make good faith efforts to notify the poster and give the poster a reasonable opportunity to respond; (2) the plaintiff must specifically identify the poster's allegedly actionable statements; (3) the complaint must set forth a prima facie
cause of action
A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a ...
; (4) the plaintiff must support each element of the claim with sufficient evidence; and (5) "the court must balance the defendant's First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant's identity to allow the plaintiff to properly proceed."
The so-called
''Dendrite'' standard was adopted by the
Arizona Supreme Court
The Arizona Supreme Court is the state supreme court of the U.S. state of Arizona. Sitting in the Supreme Court building in downtown Phoenix, Arizona, Phoenix, the court consists of a chief justice, a vice chief justice, and five associate justice ...
in ''
Mobilisa, Inc. v. Doe'', and most recently, by
Maryland's highest court in ''Independent Newspapers v. Brodie''. After reviewing the treatment of anonymous online speech by other state and federal courts, the Maryland court concluded that "a test requiring notice and opportunity to be heard, coupled with a showing of a prima facie case and the application of a balancing test—such as the standard set forth in ''Dendrite''—most appropriately balances a speaker's constitutional right to anonymous Internet speech with a plaintiff's right to seek judicial redress from defamatory remarks."
Motion to dismiss standard
Some early cases required plaintiffs to demonstrate that their cause of action could withstand a
motion to dismiss
In United States law, a motion is a procedural device to bring a limited, contested issue before a court for decision. It is a request to the judge (or judges) to make a decision about the case. Motions may be made at any point in administrati ...
. This standard holds plaintiffs to a much lower evidentiary burden than the summary judgment standard, as it only requires the allegation of facts that, if true, would entitle the plaintiff to a
legal remedy
A legal remedy, also referred to as judicial relief or a judicial remedy, is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right, imposes a penalty, or makes another court order to impose its ...
.
A
California district court applied this standard in one of the first cases to consider the discovery of an anonymous online speaker's identity, ''Columbia Insurance Co. v. Seescandy.com''. The court analogized the motion to dismiss standard to the requirement in a criminal investigation that the government show
probable cause
In United States criminal law, probable cause is the standard by which police authorities have reason to obtain a warrant for the arrest of a suspected criminal or the issuing of a search warrant. There is no universally accepted definition o ...
before obtaining a
warrant, in that both prerequisites were necessary to "prevent abuse." The court concluded that an anonymous poster could only be unmasked if the plaintiff made "some showing that an act giving rise to civil liability actually occurred and that the discovery
asaimed at revealing specific identifying features of the person or entity who committed that act." Inconsistent with a motion to dismiss standard, the court also relied on evidence of actual confusion in finding a basis for allowing discovery to identify the anonymous speaker.
Good faith standard
Under a good faith standard, plaintiffs are simply required to show that their claim is made in
good faith and not with the intent to harass the Doe defendant. In an early case, the
Circuit Court of
Virginia
Virginia, officially the Commonwealth of Virginia, is a state in the Mid-Atlantic and Southeastern regions of the United States, between the Atlantic Coast and the Appalachian Mountains. The geography and climate of the Commonwealth ar ...
applied this standard in ''In re
Subpoena Duces Tecum
A ''subpoena duces tecum'' (pronounced in English ), or subpoena for production of evidence, is a court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial. In s ...
to
America Online'', holding that a court may compel an ISP to reveal a subscriber's identity if it finds "that the party requesting the subpoena has a legitimate, good faith basis to contend that it may be the victim of conduct actionable in the jurisdiction" and that "the identity information is centrally needed to advance that claim." In
Doe v. 2themart.com Inc., the U.S. District Court for the Western District of Washington required showing of good faith, as well as the compelling need for the discovery of the identifying information.
Courts and commentators have subsequently deemed this standard the "most deferential to plaintiffs," as "it offers no practical, reliable way to determine the plaintiff's good faith and leaves the speaker with little protection."
Statutory limitations to obtaining IP addresses
Federal privacy statutes may limit a plaintiff's ability to gain access to an ISP's subscriber records.
Cable TV Privacy Act of 1984
Under the
Cable TV Privacy Act
The Cable Communications Policy Act of 1984 (codified at ) was an act of Congress passed on October 30, 1984 to promote competition and deregulate the cable television industry. The act established a national policy for the regulation of cable te ...
of 1984, a cable ISP may be required to notify its subscribers and obtain consent before disclosing any personally identifiable information, but the statute provides limited exceptions to the consent requirement, including disclosure made pursuant to a
court order.
Electronic Communications Privacy Act
The
Electronic Communications Privacy Act
Electronic Communications Privacy Act of 1986 (ECPA) was enacted by the United States Congress to extend restrictions on government wire taps of telephone calls to include transmissions of electronic data by computer ( ''et seq.''), added new pr ...
[ 18 U.S.C.br>§ 2703(d)]
restricts government and private access to computer records. Thus, in order to unmask the author of an anonymous post through the legal process, the individual seeking the information must comply with ECPA. There is no provision within ECPA, other than voluntary disclosure or with consent, that allows civil litigants to force an ISP or website to reveal the contents of a user's emails via a subpoena.
[''See'' ''O'Grady v. Super. Ct.'']
139 Cal. App. 4th 1423 (pdf)
(2006) (holding that ECPA prohibited disclosure of emails in connection with a subpoena); ''Fed. Trade Comm'n'' ''v.'' ''Netscape Commc'ns Corp.''
196 F.R.D. 559
(N.D. Cal. 2000) (denying FTC's motion to compel disclosure of customer information because of ECPA); 18 U.S.C. § 2703 (only government entities can force disclosure). ''But see Flagg v. City of Detroit
Detroit ( , ; , ) is the largest city in the U.S. state of Michigan. It is also the largest U.S. city on the United States–Canada border, and the seat of government of Wayne County. The City of Detroit had a population of 639,111 at the ...
''
252 F.R.D. 346 (pdf)
( E.D. Mich. 2008) (finding that a subpoena can be used to force a party to consent to disclosure). However, a private party in a lawsuit may force an ISP to disclose non-content records (e.g. the name of the owner of an account, a list of email addresses to whom emails were sent, access times, etc.) through a subpoena. In addition, the government can obtain the records needed to identify the person behind an IP address using a subpoena. In order to obtain more detailed transactional records, the government would be required to obtain a court order by setting forth "specific and articulable facts show that there are reasonable grounds to believe...the records...are relevant and material to an ongoing criminal investigation."
See also
*
Anonymous post
An anonymous post, is an entry on a textboard, anonymous bulletin board system, or other discussion forums like Internet forum, without a screen name or more commonly by using a non-identifiable pseudonym.
Some online forums such as Slashdot do n ...
*
Strategic lawsuit against public participation
References
External links
Cyberslapp
{{DEFAULTSORT:Doe Subpoena
Legal documents