Previous Politech coverage:
http://www.politechbot.com/p-02355.html
And:
http://www.bergenrecord.com/news/pmemd200108165.htm
[...] Paul Alan Levy, an attorney with the non-profit
Public Citizen Litigation Group, sent a letter Wednesday to Superior
Court in Hackensack. He raised questions about officials' attempts to
force the Internet service provider to identify the 60 people who
posted messages under anonymous screen names.
Levy, who argued the Dendrite case, in which a New Jersey appellate
court upheld the rights of anonymous online critics against companies, said
the Moldow case is more troubling because it involves public
officials.
"We are concerned about people's rights to speak anonymously on the
Internet," Levy said. "There's no right to go on the Internet and
libel people, but there need to be procedures in place to protect
their rights before they are identified." [...]
-Declan
********
Date: Thu, 16 Aug 2001 09:53:13 -0400
From: "Paul Levy" <PLEVY_at_citizen.org>
To: <declan_at_well.com>
Subject: Emerson case
The defendant's lawyer leaked the Emerson letter to the press, so I guess
it is now public:
http://www.bergenrecord.com/news/pmemd200108165.htm
Here it is, as original except a typo is corrected:
BY TELECOPIER: 201-752-4416
August 15, 2001
Honorable Mark A. Russello, J.S.C.
Bergen County Justice Center
10 Main Street
Hackensack, New Jersey 07601
Re: Donato v. Moldow, No. BER-L-6214-01
Dear Judge Russello:
I write to you as counsel for a potential amicus curiae in this case about
the request for an expedited subpoena to the Internet Service Provider
("ISP") VantageNet, seeking information that might lead to the
identification of several dozen individuals who have posted derogatory
comments about several public officials in the Borough of Emerson, New
Jersey.
This subpoena request raises several concerns. The persons who posted
these comments are likely to live in Emerson, where they are subject to the
governmental authority that the plaintiffs in the case may wield over
them. The plaintiffs have made clear that they are very angry about these
statements, as they are entitled to be given the nature of the comments,
which, if the allegations in the complaint are to be believed, range from
some specific factual charges of a potentially damaging nature to other
comments which make clear that the posters detest the officials.
However, the Supreme Court of the United States has held that the First
Amendment protects the right to speak anonymously, McIntyre v. Ohio
Elections Comm., 514 U.S. 334 (1995), and in a recent case the Appellate
Division promulgated strict guidelines to balance the rights of anonymous
speakers in keeping their anonymity against the right of companies that
have been criticized on the Internet to vindicate their rights under
contract and tort law to be free of defamatory speech and employees
revealing trade secrets. Dendrite v. Doe, 2001 N.J. Super. Lexis 300 (App.
Div. 2001). This case presents an even more serious situation, of course,
because the speech is about public officials. And we have substantial
concerns about whether the notice requirements and the substantive
standards of Dendrite have been satisfied in this case
In Dendrite, the plaintiffs were required to provide very specific notice
that informed each defendant of the charges against him or her, and gave
information about the time and place where they could appear to defend
their rights to anonymity, as well as giving information about how the
speakers could find counsel to protect their interests. The plaintiffs
were required to identify each of the statements that was alleged to be
actionable, and to show how those statements were actionable. Next, the
plaintiffs were required to provide evidence to support all of the elements
of their claims. Finally, assuming that all these tests were met, the
Court was required to balance the interests of the speakers in anonymity
against the interest of the plaintiffs in going forward. And, under
Dendrite, all of these tests must be met before subpoenas or other
discovery procedures may be authorized.
Reviewing the complaint, it appears that some of the speech that has been
alleged in this case could support a defamation claim, assuming that the
statements were made as alleged and that there is evidence of falsity and
damages. On the other hand, we rather doubt that a public official can sue
a citizen for saying in a public forum, "I hate you." Thus, it seems to us
that there is a real need for the careful application of the Dendrite test
in this case. The problem is all the greater because, unlike Dendrite
which was a private company, the plaintiffs here are public officials whose
possession of state power gives them the automatic ability to cause great
harm to any citizen of Emerson who is identified through this
case. However, the only notice that has been published in this case is a
short paragraph on an inside page of the web site, which reads as follows:
On Wednesday, August 1, 2001 the Web Master of The Eye on Emerson, Steve
Moldow, was served with a lawsuit filed by Vincent Donato, Gina Calogero,
Larry Campagna and Eric Obernaur (The Plaintiffs). The defendants are Steve
Moldow, the operator of The Eye on Emerson and approximately 70 anonymous
users of the web site that are alleged to have posted defamatory and
harrassing messages about the Plaintiffs. All of the documents, with the
exception of the exhibits (which are primarily copies of posted messages)
are available to be viewed by clicking on the links below.
http://www.geocities.com/emersoneye/lawsuit/contents.html
Unlike the notice in Dendrite, which is posted at
http://messages.yahoo.com/bbs?.mm=FN&board
=4688055&tid=drte&sid=4688055&action=m&mid=867, this notice only identifies
the posters by reference to some other document, and it gives no
information about how and where posters may appear to defend themselves or
how they can obtain counsel. One of the links is to a document specifying
the time and place for a hearing, but among the purposes of the hearing is
said to be specifying the way in which notice will be provided to users of
the existence of the action and of the ways they can obtain counsel. Thus,
the notice encourages users to wait until after that hearing to learn how
they may protect their anonymity.
Moreover, we believe that given the fact that the speech at issue is core
political speech (even if some of it is plainly hateful), and given the
fact that the plaintiffs are public officials, the Court has an additional
responsibility to ensure that a subpoena for identifying information is not
issued without a prior assurance that the plaintiff has a valid cause of
action. In Dendrite, Judge MacKenzie declined to consider certain
arguments regarding the privacy of Dendrite employees who had allegedly
breached their employment contract by speaking online, unless and until
they appeared in the action to present such arguments. However, we
question whether this Court should give government officials authority to
identify their critics without prior consideration of their privacy rights
and of the existence of probable cause for the search, regardless of
whether the citizens have themselves appeared in the matter.
Unfortunately, it is our understanding that the webmaster, who in our
judgment has standing to raise the rights of the speakers who have used his
web site as a forum to voice their concerns about public officials, has
decided to accept a Consent Order allowing the subpoena to be
served. Because the webmaster is also a defendant in the case, and must
pay his private lawyer for any arguments that he may make, we understand
the constraints under which he is operating. However, although that order
gives a nod in the direction of Dendrite, what Dendrite requires is that
the Court conduct a certain inquiry before any discovery is
authorized. Thus, the Consent Order should not excuse the plaintiffs from
complying with the strict requirements of Dendrite.
Public Citizen is the amicus curiae which, along with the American Civil
Liberties Union of New Jersey, argued for the analysis that was eventually
adopted in Dendrite; given our concern that the plaintiff in this important
case may be avoiding the requirements of that decision, we would like to
have an opportunity to present our concerns to you. We have contacted the
ACLU-NJ concerning the role that we might play together in this matter, and
given time, both amici would be prepared to provide further briefing and to
participate in a hearing on the First Amendment issues raised by this case.
Regrettably, given prior commitments to an Internet defendant in a case
pending in the United States District Court for the Northern District of
Illinois, I would be unable to attend a hearing before you on August
17. Moreover, this is a case seeking damages, and so there would seem to
be no harm in delaying a hearing on the motion.
The one concern about delay that does appear substantial to us is that
identifying information in the hands of the ISP may be destroyed under
routine procedures. There are assertions in the affidavit of plaintiff
Colagero, admittedly made only on the basis of information and belief,
concerning the procedures followed by VantageNet. If adequately
supported, these allegations could support an order to VantageNet to
preserve evidence, assuming that the Court has jurisdiction of VantageNet,
which we understand to be located in Minnesota. The webmaster has agreed
to preserve any evidence that he has, and perhaps VantageNet would do the
same, pending a hearing should one be required. So far as we are aware,
counsel for neither plaintiffs nor defendant Moldow has been in touch with
counsel for VantageNet to see whether it would be agreeable to preserving
information pending a hearing. We have been attempting to contact
VantageNet to learn what their procedures are, and we think it would be
appropriate for notice to be given to VantageNet so that its counsel have
an opportunity to participate in a hearing on such an order.
Thank you for considering these concerns.
Respectfully yours,
Paul Alan Levy
cc: Louis Lamatina, Esquire (201-291-0777)
Jack Darakjy, Esquire (201-261-7978)
Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation/litigation.html
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Received on Aug 16 2001
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