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Fitch v. Doe

Plaintiff sued Doe, who had sent an email in the plaintiff's own name to several members of a community association in which the plaintiff was active. Plaintiff claimed that this constituted both identity theft and other torts under state law. Doe defended in the trial court solely on the ground that the subpoena should not be enforced because his internet access was by cable and the Cable Communications Policy Act, 47 U.S.C. sec. 551(c) forbids ANY subpoenas for confidential subscriber information unless there is strong proof of criminal activity. The trial court found that in any event Doe had consented to such subpoenas in his user agreement. Doe appealed, and repeated his Cable Act argument but also argued that the First Amendment right of anonymity required a finding that his email was actionable. Members of the cyberslapp coalition, and amici curiae, supported the First Amendment argument. The Supreme Judicial Court of Maine found insufficient evidence of consent in the user agreement, but went on to reject the Cable Act argument, finding that subpoenas could be sought in civil cases. The Court also decided that it could hear an appeal from the decision enforcing the subpoena because otherwise the right to anonymity would be irretrievably lost, and it took note of courts that had adopted standards for deciding this issue under the First Amendment. However, the court decided that because the First Amendment argument had not been raised below, it could not be considered for the first time on

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