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Another anonymity case -- and the seamy side of an "anonymity-protective" ISP
From: David Farber <dave () farber net>
Date: Tue, 21 Nov 2006 19:48:02 -0500
Begin forwarded message:
From: Paul Levy <plevy () citizen org>
Date: November 21, 2006 6:30:58 PM EST
To: dave () farber net
Subject: Another anonymity case -- and the seamy side of an
I want to call your attention to a motion filed by my colleagues Greg
Beck, seeking to quash a particularly abusive attempt to identify
the operator of a web site that hints at criticisms of a
controversial Massachusetts businessman. www.paulmcmann.com.
Greg's client was the subject of a lawsuit and a request for issuance
of a subpoena from the federal court in Boston (where the plaintiff
businessman lives). Without even waiting for a response from the
Doe, the district judge quashed the subpoena both because there was
an insufficient showing of the basis for federal jurisdiction, and
because the plaintiff had made no showing of facts establishing that
the plaintiff had a valid lawsuit.
The plaintiff then found a lawyer in Arizona to file a new lawsuit,
repeating the allegations in the Massachusetts case, but not
providing any evidence of wrongdoing and not telling the Arizona
court either than the plaintiff was from Massachusetts not Arizona,
or that the Massachusetts judge had already refused to issue a
subpoena. The Arizona court just issued the subpoena, and Greg has
now moved to quash as described in the attached press release; there
is a link to the brief at the end.
There is another aspect to the story that is almost more disturbing
than the abusive subpoenas. The Doe obtained his domain name from
Domains by Proxy, which promotes itself as a way to register a domain
name without providing identifying contact information. http://
www.domainsbyproxy.com/ But when DbP gave the Doe notice of the
service of the Arizona subpoena, it gave him THREE business days to
file a motion to quash -- much less time than the two weeks or more
on which most other ISP's insist, even though DbP's supposed business
model is the protection of anonymity. And when Greg sought DbP's
cooperation by, for example, providing a copy of the subpoena and
allowing a fair extension, it proved difficult to get the company's
attention and the little assistance that Greg was able to wring out
of the company was grudging, as if protection of its own customers
anonymity rights was too much of a bother. At one point, the ISP's
general counsel told Greg, "Well, he only sent me $3.99 and I've
already spent a lot more than that talking to you."
So the lesson seems to be, with respect to Domains by Proxy, caveat
emptor. And it is cases like these the show the need for notice
procedures and showings of the basis for discovery BEFORE the
subpoena issues, because not all ISP's provide enough protection for
their clients' anonymity.
Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
Robert Yule 11/21/2006 2:08 PM >>>
PUBLIC CITIZEN PRESS RELEASE
For Immediate Release: Contact: Greg Beck (202) 588-7713
Nov. 21, 2006 Robert
Yule (202) 588-7703
Public Citizen Files Motion to Protect Identity of Anonymous Web Site
Massachusetts Real Estate Developer Should Not Be Allowed to Unmask
Online Critic in Arizona Court
WASHINGTON, D.C. - An Arizona court should not allow a target of
online criticism to use a lawsuit to obtain the identity of his
Internet critic when an almost identical lawsuit has already been
dismissed by another court, according to a motion filed late
yesterday by Public Citizen. The motion asks the Superior Court of
Arizona in Maricopa County to quash the subpoena of a Massachusetts
real estate developer against the operator of a critical Web site and
to dismiss charges violating the site operator's First Amendment rights.
The case, filed in the Superior Court of Arizona in Maricopa County,
is the second attempt by plaintiff Paul McMann to obtain a subpoena
to learn the identity of defendant John Doe, an anonymous Web critic
who maintains a site devoted to McMann at http://www.paulmcmann.com/.
Doe created the site after a negative business transaction with
McMann and invited others to share similar experiences by posting on
a message board. The site includes a warning about doing business
with McMann and a list of businesses registered in his name.
"This case demonstrates how fragile our privacy on the Internet
really is," said Greg Beck, an attorney for Public Citizen Litigation
Group. "Anyone who files a meritless complaint can get a subpoena
from a court to reveal your identity, even if the complaint has
already been rejected by another court."
The U.S. District Court for the District of Massachusetts in October
dismissed McMann's first attempt to learn Doe's identity, finding
that he did not have any legitimate claim for defamation, invasion of
privacy or copyright infringement. McMann filed the new complaint in
Arizona six days later, even though the anonymous critic has no
connection with the state. McMann omitted from his complaint all
mention of the prior lawsuit.
Seeking to unveil Doe's identity, McMann sent a subpoena to GoDaddy
and Domains by Proxy, the companies responsible for registering and
hosting the Web site. McMann and his counsel made no attempt to
notify Doe of the case against him, and Doe did not learn about the
pending subpoena until GoDaddy contacted him Nov. 10 by email.
Even though Domains by Proxy is designed to protect the privacy of
Web site owners, its parent company GoDaddy told Doe he had only
three business days to file a motion to quash the subpoena or it
would release his identifying information. This required Doe to find
and hire a lawyer in Arizona, prepare the motion and notify GoDaddy
within that period of time. GoDaddy also told Doe that it would
charge his account for releasing the information and even refused to
provide Doe with a copy of the subpoena he was objecting to.
On behalf of Doe, Public Citizen negotiated an extension from GoDaddy
until Nov. 21 and filed the motion to quash the subpoena. Phoenix
attorney Louis Hoffman of Hoffman & Zur is local counsel for Doe.
To read Public Citizen's motion, visit http://www.citizen.org/
Public Citizen has a record of defending the First Amendment rights
of Internet users. To learn more, visit http://www.citizen.org/
Public Citizen is a national, nonprofit consumer advocacy
organization based in Washington, D.C. For more information, please
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- Another anonymity case -- and the seamy side of an "anonymity-protective" ISP David Farber (Nov 22)