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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 "anonymity-protective" ISP

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
(202) 588-1000
http://www.citizen.org/litigation

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 Operator

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/ documents/mcmannmemo.pdf.

Public Citizen has a record of defending the First Amendment rights of Internet users. To learn more, visit http://www.citizen.org/ litigation/briefs/IntFreeSpch/.

###

Public Citizen is a national, nonprofit consumer advocacy organization based in Washington, D.C. For more information, please see http://www.citizen.org.



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