In light of Dan Schultz‘s excellent post entitled Anonymous vs. Scientology: A Case Study of Digital Media, I’ve decided to focus my post this week on the legal and practical issues you should consider if you wish to engage in anonymous speech online.
This is the third in a series of posts I’ve put up highlighting some of the topics covered in the Citizen Media Law Project’s recently launched Citizen Media Legal Guide. In the first two posts I discussed choosing a business form
for your online activities and the legal issues associated with selecting a
platform for online speech.
Deciding Whether and How to be Anonymous
Putting aside the possible legal challenges to anonymity
for the time being, there are some practical considerations that you
should think about before deciding to carry out your online publishing
activities anonymously or pseudonymously.
There are good reasons to publish your blog or website under
your real name. Using your real name tends to increase your credibility. Many
readers will be inclined to discount anything published
anonymously, and for other readers it creates a presumption of
unreliability that can be difficult to overcome. You may want to
distance yourself from these assumptions, even if you find them
unjustifiable. Using your real name may also help you develop a
reputation as a quality provider of information and/or commentary.
Finally, using your real name promotes transparency. If people know who
you are, it is easier for them to determine whether you have a potential bias or
conflict of interest when it comes to certain topics.
On the other hand, you may have compelling reasons to publish
your blog or website anonymously. Publishing anonymously may protect
you from retaliation by those who don’t like what you write. This is a
real possibility if you write about those with power over you such as your employer or engage in
whistleblower activity. You could be harassed or fired from your job
for what you write, even if the person who objects to your speech does
not have a valid legal claim against you. In some places, what you
write could threaten your safety or lead to your arrest and detention
by political authorities. In these situations, there are good reasons
for hiding your online identity. Alternatively, you may want to
engage in lively debate on local politics without being judged based on
widely known personal attributes, or you might want to discuss
sensitive topics without being discovered by friends and family. These
reasons, while less dramatic, are no less justifiable.
As we discuss in the Potential Legal Challenges to Anonymity section of the legal guide, you should be aware that publishing anonymously will not
necessarily stop someone from bringing a “John Doe” lawsuit against you
and using court procedures to obtain your identity from your Internet
service provider or web host. It is a misconception that you can act
with impunity when you post anonymously or pseudonymously. However, the
law does provide some protection for anonymous online speech. You can
read more about these protections in the section on Legal Protections for Anonymous Speech.
In the end, this is a personal decision, and you will have to
decide based on your own preferences and assessment of the relevant
risks.
A common misconception is that you cannot be sued for blogging or
posting material anonymously or pseudonymously because your identity is
forever
hidden. In fact, there are legal procedures that individuals,
companies, and the government can use to discover the identity of an
anonymous or pseudonymous online speaker under certain circumstances.
In the civil litigation context, the legal system provides for a kind of lawsuit called a “John Doe”
lawsuit, in which a plaintiff sues an unknown defendant — for
example, an anonymous blogger who allegedly libeled the plaintiff or
revealed the plaintiff’s confidential information. These suits may also
be called “Jane Doe” or “Jean Doe” suits if it appears that the
anonymous defendant is female. Once a party has filed a John Doe lawsuit, the
rules of court procedure give the plaintiff tools to uncover the
defendant’s identity.
The most important of these tools is a subpoena: a legal order commanding the person or
organization named in the subpoena to provide information or testimony at a
specified time and place about a matter concerned in an investigation
or a legal proceeding. In
this type of case, the party issuing the subpoena usually demands that your Internet
service provider (ISP), email provider, or web host produce documents
or information that will reveal your identity.
You should be aware that sometimes plaintiffs file John Doe lawsuits against anonymous Internet users only to expose their identities, not because they want to pursue a legally valid claim against them.
How can you protect yourself from being exposed through a lawsuit? There are technical precautions
you can take to protect your anonymity, so that, even if someone issues
a subpoena to your ISP, email provider, or web host, those sources will
not have useful information about your identity. Please see the How to Maintain Your Anonymity Online section of the legal guide for details.
You also have the legal right to contest a subpoena seeking to
reveal your identity. You usually do this by filing a “motion to quash”
the subpoena, which is discussed below.
What happens when a subpoena is issued? It depends a lot on whether you know about it. If you don’t know about the
subpoena, then for all practical purposes you cannot challenge it in court, and your service
provider may give up your identity without much of a fight. Luckily,
the chances are good (or at least
they are getting better) that your service provider will notify you that it has received a subpoena. If you find out about a subpoena demanding
the disclosure of your identity, you should consider hiring a lawyer
and moving to “quash” (i.e., challenge) the subpoena.
How will you know about the subpoena? The hard reality is that there is no assurance that you will know when a subpoena is issued. Nevertheless, it is becoming more and more common for service providers to notify their clients before responding to subpoenas that ask for identifying information. You might check with your ISP or e-mail service about its policy ahead of time. Some service providers
have clauses in their terms of use or privacy policy stating that they
make efforts to notify customers before responding to subpoenas of this
kind. Please see the section entitled Getting Your Words and Other Content Out to the World for details on locating a web host or service provider that
helps protect your anonymity. In the past, some ISPs have even taken it
upon themselves to challenge subpoenas asking for identifying
information about their clients.
Furthermore, courts in many states require that a plaintiff
make reasonable efforts to notify the anonymous Internet speaker before
obtaining disclosure of his or her identity. Unfortunately, this
requirement only comes up if the plaintiff is required by state
procedure to request permission from a court in order to issue the
subpoena (which is often the case when a subpoena is issued very early
in a lawsuit). The required efforts often including posting a notice
about the subpoena on the website or message board where the
complained-of statements appeared. Alternatively, the plaintiff may ask
the service provider to send a notice to the anonymous poster (the ISP,
email provider, or web host usually will have the email and/or physical
address of the client, hence the reason for the subpoena in the first
place).
Keep in mind, however, that neither of these practices is
universal, and there is no guarantee that you will be notified before
your identity is disclosed.
If you are notified about the subpoena, how can you protect your identity? In general, judges do not review subpoenas as they are issued.
Instead, you need to file a motion to block (or, in legal jargon,
“quash”) the subpoena. The amount of time you have to file a motion to quash the
subpoena is usually short — typically around seven days — so you need
to move fast. You should ask your ISP or other provider for a copy of
the subpoena, so that you can determine the court under whose authority
the subpoena was issued. Assuming you want to challenge the subpoena,
you should also contact a lawyer who can file a motion to quash with
that court. Because of the generally short time limit for responding to
subpoenas, your lawyer may need to file a request for an extension of
time to file the motion.
For more information on the legal standards applied by courts before
allowing a plaintiff to uncover an Internet speaker’s identity, see the
Legal Protections for Anonymous Speech section and your relevant state law section on anonymous speech in the legal guide.
Keep in mind that it might not always be worth it to challenge a
subpoena seeking disclosure of your identity. It can be a costly
process involving high legal fees, and there is no guarantee that
hiring a lawyer will enable you to successfully challenge the subpoena. You should think carefully about whether your anonymity
is worth the time and money required to protect it.
Because of the risks and costs associated with fighting a
subpoena, you are better off taking steps to minimize the identifying
information you provide about yourself if anonymity is important to
you. You’ll find some useful information in this regard in the How to Maintain Your Anonymity Online section of the legal guide.
For more information on responding to subpoenas, see the section on Responding to Subpoenas in the legal guide. For information about defending against lawsuits generally, please see the Responding to Legal Threats section.