In a recent article Christopher Wolf looks back at the eG8 conference and pleads for better transatlantic cooperation on privacy matters, explaining the tension between U.S. First Amendment traditions, and certain European proposals including the right to be forgotten.
The Supreme Court has ruled in Doe v. Reed that the names of people who signed petitions in an attempt to overturn a law providing expanded rights for same-sex couples in the State of Washington must be made public. In this 8-1 decision, in which the Chief Justice delivered the opinion of the Court, with Justice Thomas dissenting, the Court rejected the Petitioners' First Amendment argument that signing petitions to obtain a referendum is constitutionally protected political speech which requires anonymity.
A group called Protect Marriage Washington sought to shield the names of the 138,000 people who signed petitions to obtain a Referendum on what they labeled the "everything but marriage" same-sex domestic partner law. In November, voters in the State of Washington upheld the new statute through the referendum. The Petitioners argued that publication of the names would subject the people who signed the referendum to potential harassment. The State argued that there were laws in place to protect people who might be threatened and that Open Government required transparency regarding who was behind a proposed change in state law.
In October 9, 2009, the United States Circuit Court of Appeals for the Ninth Circuit overruled a Seattle federal district court opinion shielding the petition signers' identity, finding that signing a petition in public is not an anonymous activity, that other petition signers could see their names and that government officials would be verifying their identity. The Supreme Court stayed that lower court ruling.
Today's ruling rejected the Petitioners' broad challenge to the Washington statute under the First Amendment but left open the possibility of a successful challenge to the law "as applied" if specific facts warrant, an issue that may be pursued in the district court.
The case has potential significance not just on the transparency of the referendum process, but also for other "open government" laws like the disclosure of who contributes to political campaigns
Thanks to Eric Bukstein in the Hogan Lovells privacy group for providing this report.
On May 3, 2010, in Arista Records v. Doe 3, a Second Circuit panel issued an opinion finding that an Internet user’s right to remain anonymous is not sufficient to prevent an ISP from revealing his identity in a copyright infringement dispute. The court held that a record label may subpoena information about Internet users connected to IP addresses if there is sufficient evidence that the IP addresses had been used to illegally share music.
A group of record labels had evidence suggesting that specific IP addresses connected with the State University of New York at Albany (“SUNYA”) had been used to infringe on the record labels’ copyrights by sharing music on peer-to-peer networks. The record companies subpoenaed SUNYA for disclosure of the names and contact information of the individuals associated with the IP addresses. After being notified of the subpoena by SUNYA, the defendant moved to quash the subpoena, arguing that “the First Amendment affords a qualified right to use the Internet anonymously.” In the district court, both a magistrate judge and a district judge both rejected this argument and refused to quash the subpoena.
In affirming, the Second Circuit held that “to the extent that anonymity is used to mask copyright infringement or to facilitate such infringement by other persons, it is unprotected by the First Amendment.” The court adopted a five-factor test set forth in a different case by the U.S. District Court for the Southern District of New York to determine whether an Internet user’s right to anonymity requires that a subpoena be quashed. These factors are:
(1) [the] concrete[ness of the plaintiff’s] showing of a prima facie claim of actionable harm, . . . (2) [the] specificity of the discovery request, . . . (3) the absence of alternative means to obtain the subpoenaed information, . . . (4) [the] need for subpoenaed information to advance the claim, . . . and (5) the [objecting] party’s expectation of privacy.
Sony Music Entertainment Inc. v. Does 1-40, 326 F.Supp.2d 556 (S.D.N.Y. 2004). The court found that all five factors weighed against the defendant and his right to anonymity.
The court also dismissed the defendant’s arguments that the record labels should be required to meet a heightened pleading standard in order to compel the identification of anonymous Internet users. The court held that the facts in the complaint were sufficient to state plausible copyright infringement claims, and this was sufficient to compel SUNYA to reveal the defendant’s identity.
This opinion follows several other cases recently discussed in the Chronicle of Data Protection in which courts addressed whether an ISP is required to disclose the identities of Internet users.
Last August, in Cohen v. Google, a New York court granted a motion forcing Google to reveal the identity of an anonymous blog poster who had allegedly defamed a Manhattan-based model on a blog entitled “Skanks of NYC.” Also last August, in Solers, Inc. v. Doe, the D.C. Court of Appeals articulated its own five-part test to determine whether to quash a subpoena seeking the identity of an anonymous defendant who had allegedly provided a tip to the Anti-Piracy Division of the Software & Information Industry Association that Solers, Inc., a software company, was using unlicensed software. The court granted leave for the plaintiff to amend its complaint to present evidence sufficient to meet these new standards.
Looking forward, the question will often not be whether a court will force an ISP to reveal the identity of an anonymous Internet user, but rather how strong a plaintiff’s pleadings must be before a court will allow for a subpoena to compel the identity of an anonymous Internet user.
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