Liberties Union of Washington
705 Second Avenue, Suite
Seattle, Washington 98104-1799
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
2TheMart.com, Inc. Securities Litigation
Case No: Misc.
Pending in C.D. California
MEMORANDUM IN SUPPORT OF MOTION OF J. DOE TO QUASH SUBPOENA
ISSUED TO SILICON INVESTOR/INFOSPACE, INC.
Movant John/Jane Doe (hereinafter "Doe") used an internet
bulletin board to post messages under the pseudonym "NoGuano."
In this action, defendant 2TheMart.com, Inc. served a third party
subpoena to InfoSpace Inc., the operator of the bulletin board,
demanding that it disclose Doe's true identity. Doe asks this Court
to quash the subpoena as it relates to Doe and the other anonymous
speakers named in the subpoena ("the Does"), because it
violates their First Amendment right to speak anonymously.
1 INTRODUCTION 7
2 STATEMENT OF FACTS 11
3 BACKGROUND REGARDING INTERNET BULLETIN BOARDS 11
4 THE SUBPOENA TO INFOSPACE 18
5 SUMMARY OF ARGUMENT 24
6 ARGUMENT 27
7 THE COURT SHOULD QUASH THE SUBPOENA TO INFOSPACE BECAUSE
IDENTIFYING THE DOES WOULD DESTROY THEIR RIGHT TO SPEAK
8 The First Amendment Protects the Right to Speak Anonymously 28
9 Enforcing this Subpoena Would Violate Defendant's Substantive
Constitutional Rights 34
10 THE COURT SHOULD APPLY A BALANCING TEST TO DETERMINE WHETHER
TMRT'S NEED FOR DOE'S IDENTITY OUTWEIGHS DOE'S FIRST AMENDMENT RIGHT
TO SPEAK ANONYMOUSLY 39
11 CONCLUSION 55
underlying litigation is a class action securities fraud case currently
pending in US District Court for the Central District of California. The
defendant corporation, 2TheMart.com, Inc. (hereinafter known by its ticker
symbol "TMRT"), issued a subpoena seeking to have online service
provider InfoSpace Inc. reveal the identities of twenty-three speakers who
participated pseudonymously on Internet message boards operated by
InfoSpace. See Exhibit A. The subpoena does not on its face
explain why the identities of these speakers are relevant to the underlying
dispute. Indeed, the nature of the suit makes their relevance unlikely.
Under these circumstances, enforcement of a "fishing expedition"
subpoena would terminate the speakers' First Amendment right to engage in
anonymous speech without creating any corresponding benefit. Accordingly,
this Court should quash the subpoena.1
The syndrome of third party civil subpoenas issued to Internet
service providers seeking to breach the anonymity of their users is
growing increasingly frequent.
It has rarely been subjected to judicial scrutiny, however, partly because
of the short time frames typically involved in bringing a motion to quash
and partly because many internet service providers do not notify their
users before sacrificing their anonymity. This motion presents a good
opportunity for the court to clarify that the test used in other settings
where the First Amendment protects information against forced disclosure
should also be used to evaluate third party subpoenas. The choice to speak
anonymously should not be invalidated by judicial process unless it is
clearly shown that specifically identified information about an anonymous
poster is central to the claims of the party seeking the information, that
those claims are viable, and that the party can acquire the information in
no other manner.
2 STATEMENT OF FACTS
3 BACKGROUND REGARDING INTERNET BULLETIN BOARDS
The Internet is a democratic institution in the fullest sense. It
serves as the modern equivalent of Speakers' Corner in England's Hyde
Park, where ordinary people may voice their opinions, however silly,
profane, or brilliant they may be to all who choose to read them. As
the Supreme Court opined in Reno v. ACLU, 521 U.S. 844, 870
(1997), "[f]rom the publisher's point of view, [the Internet]
constitutes a vast platform from which to address and hear from a
worldwide audience of millions of readers, viewers, researchers, and
buyers. . . . Through the use of chat rooms, any person with a phone
line can become a town crier with a voice that resonates farther than
it could from any soapbox. Through the use of Web pages, . . . the
same individual can become a pamphleteer." The government's
ability to impinge upon speech is stringently limited on the
Internet, just as it would be in a traditional public forum. Id.
To allow these town criers and pamphleteers to find each other,
InfoSpace created a website called "Silicon Investor" that,
in part, contains a series of electronic bulletin boards for the
expression of user opinions around the central topic of investment in
publicly-traded securities. The Silicon Investor web site, see
features a series of message boards for various publicly-traded
companies, and it permits anyone to post messages to these boards.
While nothing prevents individuals from using their real names, most
individuals who post messages on these boards generally do so under
pseudonyms similar to the old system of truck drivers using
"handles" when speaking on their CB radios. Choosing one
of these colorful monikers protects the speaker's identity, and such
privacy generally encourages the uninhibited exchange of ideas and
part, "Individually identifiable information will not be
released without that individual's prior consent."
Indeed, Silicon Investor will revoke service to anyone who uses its
message boards to invade anothers privacy. See
(terms of service).
An important aspect of message boards that distinguishes them from
almost any other form of published expression is that a person who
disagrees with statements on a message board can respond to them
immediately at little or no cost, and that response will have the
same prominence as the offending message. A message board is thus
unlike a newspaper, which cannot be required to print a response to
its criticisms. Miami Herald Publ'g. Co. v. Tornilllo, 418
U.S. 241 (1974). Corporations and individuals can reply immediately
to criticisms on a message board, providing facts or opinions to
vindicate their positions, and thus, potentially, persuading the
audience that they are right and their critics wrong. Because many
people regularly revisit the same message boards, the response is
likely to be seen by much the same audience as the original
criticism. In this way, the Internet provides the ideal proving
ground for the proposition that the marketplace of ideas, rather than
the courtroom, provides the best forum for resolution of
disagreements about the truth of disputed propositions of fact and
4 THE SUBPOENA TO INFOSPACE
The underlying litigation is a class action securities fraud case
where plaintiffs claim they were injured in their purchases or sales
of TMRT securities as a result of fraudulent statements the
defendants communicated to the investing public. The case relies
largely on the fraud-on-the-market theory, which presumes that the
market price of an efficiently-traded security fluctuates based on
the information available to investors. See Basic, Inc. v.
Levinson, 485 U.S. 224 (1988). As applied to Internet bulletin
boards, the theory posits that a stock's price might change to the
extent that investors choose to heed the information contained in
pseudonymously authored messages. Because a pseudonymous message
does not identify its author, the author's identity, if not otherwise
known to investors from other sources, cannot affect stock price.
One of Silicon Investor's message boards pertains to TMRT. To date,
almost 1500 messages have been posted on the TMRT board, covering an
enormous variety of topics and posters. Investors and members of the
public discuss the latest news about the company, what new businesses
it may develop, the strengths and weaknesses of the company's
operations, and what its managers and employees might do better. The
messages posted on the Silicon Investor web site are archived, so
that any userincluding TMRT or its counselcan read prior
On January 24, 2001, TMRT served a subpoena from this Court upon
InfoSpace, demanding that it reveal identifying information about
twenty-three Silicon Investor users who preferred to identify
themselves by pseudonyms like "The Truthseeker",
"Edelweiss", and "NoGuano" (the latter used by
Doe). See Exhibit A. Unlike some internet services who do
not inform their users about subpoenas of this sort, InfoSpace
notified the Does by e-mail of the subpoena and gave them time to
file a motion to quash.
Prior to and during the time period covered by the TMRT securities
litigation, Doe was a regular user of the Silicon Investor web site
and discussed various companies on its bulletin boards. Review of
the postings archived on the site shows that the user "NoGuano"
has never posted on Silicon Investor's TMRT message board.
Nonetheless, Doe's constitutionally protected choice to speak
anonymously will be sacrificed as part of TMRT's general fishing
expedition if the subpoena is not quashed. The arguments outlined
below would apply even if Doe had discussed TMRT on the Internet,
perhaps even more forcefully. However, given that there is no known
link between Doe and TMRT, the loss of First Amendment protection
suffered in this case appears to have no countervailing benefit.
Accordingly, Doe requests this Court quash the subpoena to the extent
it calls for identification of all the Does, because its enforcement
would violate their rights under the First Amendment.
5 SUMMARY OF ARGUMENT
Established First Amendment doctrine should determine the legal
standard for determining whether a subpoena for the identity of a
non-party Internet speaker violates the right to speak anonymously.
This Court should make clear that the First Amendment rights of
individuals like Doe are protected from discovery fishing expeditions
in the absence of a genuine need that outweighs the constitutionally
protected interest. As a court in this Circuit recently observed,
"[p]eople who have committed no wrong should be able to
participate online without fear that someone who wishes to harass or
embarrass them can file a frivolous lawsuit and thereby gain the
power of the court's order to discover their identities."
Columbia Ins. Co. v. seescandy.com, 185 F.R.D. 573, 578 (N.D.
Cal. 1999) (discussing the standards for discovery of a defendants'
identity in a domain name/trademark dispute). While this particular
instance of third party Internet subpoenas in a securities fraud case
is new, there is ample precedent for a court to reject the use of
civil discovery tools where the disclosure of information would
infringe another party's First Amendment interests. In these cases,
courts balance the harm to the speaker against the party's proven
need for the requested discovery.
7 THE COURT SHOULD QUASH THE SUBPOENA TO INFOSPACE BECAUSE
IDENTIFYING THE DOES WOULD DESTROY THEIR RIGHT TO SPEAK ANONYMOUSLY
Petitioner seeks to use the subpoena power of this court to identify
an Internet speaker. This type of discovery directly destroys Doe's
constitutional right to speak anonymously.
8 The First Amendment Protects the Right to Speak Anonymously
The Supreme Court has repeatedly upheld the First Amendment right to
speak anonymously. Buckley v. American Constitutional Law Found.
119 S. Ct. 636, 645-646 (1999); McIntyre v. Ohio Elections Comm.,
514 U.S. 334 (1995); Talley v. California, 362 U.S. 60 (1960).
These cases celebrate the important role played by anonymous or
pseudonymous writings through history, from the literary efforts of
Shakespeare and Mark Twain through the explicitly political advocacy
of the Federalist Papers. As the Supreme Court said in McIntyre:
[A]n author is generally free to decide whether or not to disclose
his or her true identity. The decision in favor of anonymity may be
motivated by fear of economic or official retaliation, by concern
about social ostracism, or merely by a desire to preserve as much of
one's privacy as possible. Whatever the motivation may be, . . .
the interest in having anonymous works enter the marketplace of ideas
unquestionably outweighs any public interest in requiring disclosure
as a condition of entry. Accordingly, an author's decision to
remain anonymous, like other decisions concerning omissions or
additions to the content of a publication, is an aspect of the
freedom of speech protected by the First Amendment.
514 U.S. at 341-342 (emphasis added).
Reno v. ACLU firmly established that Internet speech is fully
protected under the First Amendment. Other cases have upheld the
right to communicate anonymously over the Internet. E.g.,
ACLU v. Johnson, 4 F.Supp.2d 1029, 1033 (D.N.M. 1998), aff'd,
194 F.3d 1149 (10th Cir. 1999) (upholding preliminary
injunction against New Mexico statute prohibiting dissemination of
material "harmful to minors" on the Internet); ACLU v.
Miller, 977 F. Supp. 1228, 1230 (N.D. Ga. 1997) (granting
preliminary injunction where parties likely to prove that Georgia
criminal statute imposed unconstitutional content-based restrictions
on their right to communicate anonymously and pseudonymously over the
At the same time that the Internet gives individuals the opportunity
to speak anonymously, it creates an unparalleled capacity to monitor
every speaker and discover his or her identity. The technology of
the Internet is such that sending an e mail or visiting a
website leaves behind an electronic footprint that can, if saved,
provide the beginning of a path that can be followed back to the
original sender. See Lessig, The Law of the Horse, 113
Harv. L. Rev. 501, 504-505 (1999). Thus, anybody with enough time,
resources and interest, if coupled with the power of the Courts to
compel disclosure of information, can snoop on communications to
learn who is saying what to whom. As a result, the law should
provide special protections for anonymity on the Internet. E.g.,
Post, Pooling Intellectual Capital: Thoughts of Anonymity,
Pseudonymity, and Limited Liability in Cyberspace, 1996 U. Chi.
Legal F. 139.
9 Enforcing this Subpoena Would Violate Defendant's Substantive
TMRT asks this Court to enforce a subpoena to obtain Doe's identity,
terminating once and for all Doe's right to speak anonymously. A
court order, even when issued at the behest of a private party,
constitutes state action subject to constitutional limitations,
including the First Amendment. New York Times Co. v. Sullivan,
364 U.S. 254, 265 (1964); Shelley v. Kraemer, 334 U.S. 1
(1948). A court order to compel production of individuals'
identities in a situation that would threaten the exercise of
fundamental rights "is subject to the closest scrutiny."
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461 (1958).
See also Bates v City of Little Rock, 361 U.S. 516, 524
(1960). Abridgment of the rights to speech and press, "even
though unintended, may inevitably follow from varied forms of
governmental action," such as compelling the production of
names. NAACP v. Alabama, 357 U.S. at 461.
Due process requires the showing of a compelling interest where, as
here, disclosure threatens to impair fundamental rights. Bates,
361 U.S. at 524; NAACP v. Alabama, 357 U.S. at 463. See
also In re Grand Jury Subpoena: Subpoena Duces Tecum v. John Doe 819,
829 F.2d 1291 (4th Cir. 1987) (court must strictly
scrutinize subpoena that threatens to chill the exercise of First
Amendment rights). The subpoena does not indicate on its face what
compelling interest TMRT has in learning Doe's identity. The
structure of the underlying litigation, however, suggests that there
is no such interest. Fraud-on-the-market cases hinge on the
defendants' knowledge, statements, and omissions as compared to
publicly available informationwhich at all relevant times did
not include the identities of the Does. There is even less reason
for discovery as to Doe, given the absence of comments about TMRT
Whatever test this Court uses to evaluate the subpoena, it is clear
that some evidentiary showing must be made by TMRT before there can
be any order compelling production. See Columbia Insurance
Co. v. Seescandy.com, 185 F.R.D. 573, 579 (N.D. Cal. 1999). Cf.
Quad Graphics, Inc. v. Southern Adirondack Library System,
664 N.Y.S.2d 225, 228 (NY Sup. Ct., Saratoga County 1997) (release of
identities will not be compelled where doing so would breach
protected interests and no criminal or civil charges have been
10 THE COURT SHOULD APPLY A BALANCING TEST TO DETERMINE WHETHER
TMRT'S NEED FOR DOE'S IDENTITY OUTWEIGHS DOE'S FIRST AMENDMENT RIGHT
TO SPEAK ANONYMOUSLY
Because compelled identification of anonymous speakers trenches on
their First Amendment right to remain anonymous, the First Amendment
creates a qualified privilege against disclosure. Although there is
no precedent directly on point dealing with third-party subpoenas in
securities fraud cases, this Court may rely on the rules in analogous
situations where courts have rejected the use of civil discovery
tools where the disclosure of information would be harmful to another
party's First Amendment interests.
For example, courts have a great deal of experience with third party
journalists subpoenaed for confidential information obtained in the
course of reporting. Like a journalist, InfoSpace gathers otherwise
confidential information during the normal scope of its activities.
A journalist usually requires confidential information from speakers,
both source information and facts, in order to ensure proper
verification of a story. Similarly, in its normal technical
administration of the message boards, InfoSpace gathers identifying
information from those who use the message board. In both instances
the information is gathered for a specific purpose that is unrelated
to the subsequent litigation where the information is sought.
Furthermore, forcing the release of the information in both instances
creates a chilling effect on the speech not only of the persons whose
identity is revealed, but on many other persons as well. The risk
underlying the journalists' privilege is that, faced with losing
their anonymity, persons will refuse to talk to journalists. The
risk here is that, faced with losing their anonymity, people will no
longer participate in public message boards. Thus, the risk in
failing to protect anonymity in both cases is the same: a chill on
First Amendment protected expression.
To overcome the First Amendment privilege asserted by journalists
when asked to reveal confidential information, the party seeking the
discovery of the information must show "that the claimed First
Amendment privilege and the opposing need for disclosure be
judicially weighed in light of the surrounding facts and a balance
struck to determine where lies the paramount interest." Farr
v. Pitchess, 522 F.2d 464, 464 (9th Cir. 1975).
Stated alternatively, the question is whether "the paramount
interest served by the unrestricted flow of public information
protected by the First Amendment outweighs the subordinate interest
served by the liberal discovery provisions embodied in the Federal
Rules of Civil Procedure." Loadholtz v. Fields, 389 F.
Supp. 1299, 1300 (M.D. Fl. 1995).
The test applicable to subpoenas issued to non-party journalists in
civil cases is: (1) that the information is of certain
relevance; (2) that there is a compelling reason for the
disclosure; (3) that other means of obtaining the information
have been exhausted; and (4) that the information sought goes to
the heart of the seeker's case. Los Angeles Memorial Coliseum
Commission, v. Nat'l Football League, et al, 89 F.R.D. 489. (CD.
Cal. 1981). See also Richards of Rockford v. PGE, 71
F.R.D. 388, 390-391 (N.D. Cal. 1976); Carey v. Hume, 492 F.2d
631 (D.C. Cir. 1974); Cervantes v. Time, 464 F.2d 986 (8th
Cir. 1972); United States v. Cuthbertson, 630 F.2d 139,
146 149 (3d Cir. 1980) (qualified privilege recognized under
In applying this privilege, the Ninth Circuit has recognized that
"routine court-compelled disclosure of research materials poses
a serious threat to the validity of the newsgathering process."
Mark v. Shoen, 48 F.3d 412, 415-416 (9th Cir.
1995). Similarly, as noted above, routine court-compelled disclosure
of identities of persons participating in message boards could pose a
serious threat to the ongoing viability of these public discussions.
Thus, given the similar First Amendment interests at stake, Doe
maintains that the same public purpose served by the journalists'
privilege will be served by applying this test to third party
subpoenas seeking identifying information about anonymous speakers on
publicly available message boards.
Courts have also limited the discovery of membership lists where a
subpoena impermissibly burdens Defendants' constitutional right to
freedom of association. The First Amendment protects individuals'
right to associate because, as the Supreme Court has explained,
"[t]he effective advocacy of public and private points of view,
particularly controversial ones, is undeniably enhanced by group
association." NAACP v. Alabama, 357 U.S. at 469. It is,
moreover, "hardly a novel perception that compelled disclosure
of affiliation with groups engaged in advocacy may constitute [an]
effective . . . restraint on freedom of association." Id. at
462. The same is true regarding compelled disclosure of groups'
other internal or confidential records. Adolph Coors Co. v.
Wallace, 570 F. Supp. 202, 204 (N.D. Cal. 1983) (documents
reflecting group's "sources of financial support and the scope
of its activities").
In the seminal case of Snedigar v. Hoddersen, 114 Wn.2d 153,
786 P.2d 781 (1990) (decided on federal constitutional grounds), the
Washington Supreme Court enunciated a similar two-step procedure for
evaluating discovery requests against assertions of First Amendment
associational privilege that seems especially appropriate here.
First, once the party opposing discovery shows "some
probability" that a discovery request "will harm its First
Amendment rights," then the party seeking discovery must make a
rigorous demonstration regarding the importance of the requested
information. Id. at 164. The requester must "establish
the relevancy and materiality of the information sought, and  make
a showing that reasonable efforts to obtain the information by other
means have been unsuccessful." Id. Second, if the party
seeking discovery makes this initial showing, then "the trial
court must balance [that party's] need for the information against
the [opposing party's] claim of privilege and determine which is
strongest. If clearly necessary, the trial court may make
this [second] decision following an in camera inspection of the
requested documents." Id. at 166 (original emphasis).
Both of the tests described above are consistent with a test recently
applied in this circuit in a case where the plaintiff was seeking to
identify an anonymous defendant who had registered an Internet domain
name so they could pursue a trademark action. Columbia Ins. Co.
v. Seescandy.com, 185 F.R.D. 573 (N.D. Cal. 1999). The court
required the plaintiff to make a good faith effort to communicate
with the anonymous defendants and provide them with notice that the
suit had been filed against them, thus giving them an opportunity to
defend their anonymity before the plaintiff could proceed with
discovery against third parties who could identify them. The court
also compelled the plaintiff to demonstrate that it had viable claims
against the anonymous defendants. Id. at 579. Here, TMRT's
subpoena does not seek the identity of a potential defendant, but
instead, the identities of third parties who participated in Internet
discussion about TMRT (or Doe's case, one who didn't). In addition,
since the targets of the subpoenas are those who were exercising
their First Amendment rights to comment on matters of public concern,
and since they were doing so in the public forum of the Internet, the
risk of a chilling effect from a less rigorous test is profound. To
properly protect the rights of third parties to litigation, the court
should apply a test that requires an evidentiary showing, such
as that used in the journalist's privilege and membership lists
contexts, when considering subpoenas issued to online service
providers seeking identifying information about their subscribers
when those subscribers are not parties to the pending litigation.
The party seeking information should produce evidence and not merely
rely on the pleadings.
Based upon the foregoing, Movant Doe respectfully requests that the
motion to quash the subpoena be granted.
DATED this ___ day of _________________, 2001.
ELECTRONIC FRONTIER FOUNDATION
San Francisco, CA 94110
Cindy A. Cohn
AMERICAN CIVIL LIBERTIES UNION
Attorneys for J. Doe
If the subpoena is not quashed,
the Court should, at a minimum, issue a protective order to limit
access to the identity information to only the attorneys for the
In Loudoun County, Virginiathe home of America Online, Inc.70
of the 107 applications for subpoenas filed with the circuit court
in the first four months of 1999 were directed to AOL information.
Serving warrants on AOL is almost a full-time job for
the Sheriffs process server. Stephen Dinan, Search
Warrants Keep AOL Busy, Wash. Times, April 27, 1999 at C4.
The term "identity" here refers to more than simply Doe's
name. The subpoena covers all identifying information gathered by
InfoSpace about its users, including address, credit card
information, and so on. Since this information, singly or
collectively can be easily used by Defendants to discover Doe's
name, it should be withheld as well. For the remainder of this
brief, the term "identity" includes all identifying
information held by InfoSpace.
MEMORANDUM IN SUPPORT OF
J. DOE'S MOTION TO QUASH -- 58