The Threat to Anonymous Online Speech:
Frequently Asked Questions

How is Internet anonymity under attack?

A new form of lawsuit called a "CyberSLAPP" suit is threatening to overturn the promise of anonymous online speech and chill the freedom of expression that is central to the online world. CyberSLAPP cases typically involve a person who has posted anonymous criticisms of a corporation or public figure on the Internet. The target of the criticism then files a frivolous lawsuit just so they can issue a subpoena to the Web site or Internet Service Provider (ISP) involved, discover the identity of their anonymous critic, and intimidate or silence them.

Why is anonymous speech important?

There are a wide variety of reasons why people choose to speak anonymously. Many use anonymity to make criticisms that are difficult to state openly ­ to their boss, for example, or the principal of their children's school. The Internet has become a place where persons who might otherwise be stigmatized or embarrassed can gather and share information and support ­ victims of violence, cancer patients, AIDS sufferers, child abuse and spousal abuse survivors, for example. They use newsgroups, Web sites, chat rooms, message boards, and other services to share sensitive and personal information anonymously without fear of embarassment or harm. Some police departments run phone services that allow anonymous reporting of crimes; it is only a matter of time before such services are available on the Internet. Anonymity also allows "whistleblowers" reporting on government or company abuses to bring important safety issues to light without fear of stigma or retaliation. And human rights workers and citizens of repressive regimes around the world who want to share information or just tell their stories frequently depend on staying anonymous ­ sometimes for their very lives.

Is anonymous speech a right?

Yes. Anonymous speech is presumptively protected by the First Amendment to the Constitution. Anonymous pamphleteering played an important role for the Founding Fathers, including James Madison, Alexander Hamilton, and John Jay, whose Federalist Papers were first published anonymously. And the Supreme Court has consistently backed up that tradition, ruling, for example, that an Ohio law requiring authors to put their names on campaign literature was a violation of the First Amendment. Indeed, the Supreme Court has ruled that protecting anonymous speech has the same purpose as the First Amendment itself: to "protect unpopular individuals from retaliation ­ and their ideas from suppression."

What does the name "CyberSLAPP" mean?

"CyberSLAPP" cases are so-called because they are Internet versions of a much older abuse of the legal system known as SLAPPs, or Strategic Lawsuits Against Public Participation. SLAPP cases are typically brought by powerful corporations or public figures against regular individuals who oppose them in some way ­ by fighting a new development, for example. The lawsuits are "strategic" because they have little chance in prevailing in court, but are intended to intimidate or silence citizens who cannot afford the high cost of defending against them. SLAPP suits ­ Cyber and regular alike ­ are unfair because the "punishment" that often matters most to average citizens (high legal costs, losing online anonymity) comes not after a court or jury's judgment, but as a result of the mere filing of the lawsuit.

Are SLAPP suits really allowed under the law?

Anyone can file a lawsuit. However, because of the danger that SLAPP suits pose to free speech, some states have passed laws to deter companies and others from filing them. Those laws typically require plaintiffs to pay the defendant's legal fees when a suit is found to be a SLAPP, and halt a case until a court determines whether a lawsuit is frivolous. And one court has specifically ruled that California's anti-SLAPP statute applies to online speech.

How do CyberSLAPP plaintiffs discover the identity of anonymous Internet critics?

CyberSLAPP plaintiffs usually get the personal information you gave an ISP or online message board when you signed up (name, address, telephone number, etc.). Some web sites that host discussion boards might only have your e-mail address, in which case a second subpoeana to the ISP that hosts that address will reveal your identity. In many cases, even more detailed information about your use of the Internet can be obtained; it's important to realize that when you go online, you leave electronic footprints almost everywhere you go. (With advanced knowledge of the Internet, however, there are ways to cover your tracks.)

Don't judges review subpoenas before they are sent to ISPs?

No. The issuing of civil subpoenas is not monitored by the court handling the case. Under the normal rules of discovery in civil lawsuits, parties to a suit can simply send a subpoena to anyone they believe has information that could be useful. That information doesn't even have to be relevant to the lawsuit, as long as it could possibly lead to the discovery of relevant information. The only way that a court will evaluate an identity-seeking subpena is if either the ISP or the target of the subpoena files a motion asking the judge to block the subpoena. Unfortunately, in practice that rarely happens. That is because these subpoenas usually have a short, roughly 7-day deadline, and because many people never even find out that their Internet data has been subpoenaed.

Isn't my ISP required by law to tell me if someone asks for my Internet-usage records and identity?

Unfortunately, there is currently no legal requirement for an ISP to notify you that someone has asked for your data through a subpoena . That means your anonymity could be lost before you even know it's under attack. However, some ISPs are better about this than others and do have a policy of providing notice even though they're not legally required to do so.

What should I do if I receive notice that my ISP has received a subpoena for my data?

First you should decide whether you wish to fight to protect your identity, Internet usage records, or whatever else is being sought. You might want to ask your ISP for a copy of the subpoena if they haven't already provided one. If you decide to fight it, you should inform the ISP immediately, and you may want to request that they delay compliance to give you time to find a lawyer. Then find a lawyer, who will file a motion to have the subpoena thrown out. (If your lawyer can later prove that the lawsuit was frivolous, you may be able to recover legal fees if your state has passed an anti-SLAPP statute.)

How much time would I have to try to fight a subpoena?

The ISP's deadline for complying with a subpoena can vary depending on the judge, the jurisdiction where the case was filed, and other factors. A typical deadline is 7 days. This isn't much time, so again you may want to request an extension of the deadline from the ISP and the court so your lawyer can prepare your challenge to the subpoena. But you can NOT count on getting an extension of time from them, because they can always say "no." So as soon as you receive notice of a subpoena that you want to fight, you should act fast to get legal help.

What are the typical claims behind a CyberSLAPP suit?

The most common complaints by CyberSLAPP plaintiffs are defamation, trademark or copyright infringement, and breach of contract. Speech that involves a public figure ­ such as a corporation ­ is only defamatory if it is false and said with "actual malice." It also must be factual rather than an expression of opinion. In the US, because of our strong free speech protections, it is almost impossible to prove defamation against a public figure. Trademark and copyright complaints typically claim that defendants have violated intellectual property rights by using the name of a corporation or its products, or by quoting from some of their copyrighted materials such as an annual report. In reality, the First Amendment includes a clear right to criticize and discuss corporations and their products, and the law includes clear exceptions for the "fair use" of protected material for those purposes. Breach of contract suits often involve a claim that anonymous speakers might be employees who have violated a contract by releasing confidential information. Of course, the right to anonymous speech is meaningless if a corporation can unmask your identity at will because you might be an employee breaking a promise of confidentiality.

How do judges decide whether to let a subpoena go forward?

This is a very new area of the law, and there are few well-established principles. The courts do have a duty to balance the right of anonymity against the need to prevent true defamation. So far there have been both good and bad rulings from judges; fortunately several have ruled that the plaintiff must prove that his case has at least a theoretical chance of prevailing before anonymity can be stripped away. Other cases have established a set of key factors to be used in judging anonymity-stripping subpoenas. In most of these the key factors are 1) that the party seeking the subpoena provide evidence that the identity is needed; 2) that the identity is directly needed for a key element in the case; 3) and that the identity information is not otherwise available to the party seeking it. While not yet firmly entranched in the law, these common-sense principles are clearly the right way to ensure that First Amendment rights are protected while still allowing identity to be revealed when there is a genuine need to do so.

What are some of the important cases in this area of law?

Important CyberSLAPP cases include Dendrite v. Does, Melvin v. Doe, Doe v 2TheMart.com, and Global Telemedia International v. Doe. Additional information about these and other cases can be found by searching the Internet or looking on the Web sites listed below.

Can I do anything to help change this unfair situation?

You can do several things. Be educated about your rights. Find out your ISP's policy on the handling of subpoenas, and encourage them ­ and any Web sites you frequent ­ to adopt good policies, especially a pledge to notify you of any subpoena before any private information is disclosed. Encourage your state legislators to pass legislation requiring such notice, and press them to amend state anti-SLAPP statutes to explicitly include Internet anonymity cases.

What other resources are available?

Web sites dealing with this issue include:

www.cyberslapp.org
http://www.aclu.org/issues/cyber/hmcl.html
www.citizen.org
www.eff.org
www.epic.org
www.johndoes.org
www.casp.net
www.cybersecuritieslaw.com
cyber.findlaw.com/expression/censorship.html

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